BAC DataMASTER expert

Asked over 3 years ago - West Covina, CA

My question involves criminal law for the state of: California

The DataMaster Subject Data Report from Los Angeles County Sheriff's Station reads as follow:

test Date: 06/05/10
test Time: 3:13:08
Location: Industry Stn
Subject Sample 1: 0.037
Try: 5
Simulator Result:
Subject Sample 2:
Try:
Simulator Result:
Code:
Try:
Simulator Result
Subject Sample 3:
Code:
Try:

As you can see per above, the machine only registered one number and it, therefore, gave "insufficient sample" print out.

I then tried again for the second time and the results are:

test Date: 06/05/10
test Time: 3:19:30
Location: Industry Stn
Subject Sample 1: 0.044
Try: 5
Simulator Result:
Subject Sample 2:
Try:
Simulator Result:
Code:
Try:
Simulator Result
Subject Sample 3:
Code:
Try:

Additional information

under title 17 , the machine must register two numbers that are not apart by more than .02 . This is the case. However, this happened on two separate tests rather than one and the police was not able to observe the result at the scene. I was given a DUI with refusal allegation due to the "insufficient sample" print out twice. I am about to also lose my license.

based on the above explanation, I would like to see if I this is considered refusal or if DMV can suspend my license. My most concern is the DMV hearing as I do not think that the court can charge me based on this evidence.

By the way, the field sobriety test is full of lies by the officer as if I failed all the tests. The police report does not mention anything wrong about my driving except that i was going 10 miles above speed limit.

Attorney answers (2)

  1. Robert Laurens Driessen

    Contributor Level 20

    1

    Lawyer agrees

    2

    Answered . You have asked this question several times before and the best answer is hire an attorney. Here is what is required to prove a refusal.
    Special Enhancement – Refusing to submit to a Chemical Test
    • To prove this allegation, the People must prove that:
    • 1. A peace officer asked the defendant to submit to a chemical test to determine his blood alcohol content;
    • 2. The peace officer fully advised the defendant of the requirement to submit to a test and the consequences of not submitting to a test;
    • AND
    • 3. The defendant willfully refused to submit to a test.
    A Officer Fully Advised of the consequences of a Refusal if
    • 1. Gave the option of blood or breath test;
    • 2. Told he does not have the right to have an attorney present before saying whether he will submit to a test, before deciding which test to take, or during administration of a test;
    • 3. If he refuses to submit to a test, the refusal may be used against him in court;
    • 4. Failure to submit to or complete a test will result in a fine and mandatory imprisonment if he is convicted of driving under the influence or with a blood alcohol level of 0.08 percent or more;
    • AND
    • 5. Failure to submit to or complete a test will result in suspension of his driving privilege for one year or revocation of his driving privilege for two or three years.
    Without knowing more on your case it is hard to tell if it’s a valid refusal. Yes you can have a refusal if you fail to complete a test and refuse the other method, in this case blood. Simply hire an attorney for the DMV and court process.
    Robert Driessen
    www.driessen-litigation.com

  2. Linda Medeiros Callahan

    Pro

    Contributor Level 16

    1

    Lawyer agrees

    1

    Answered . First of all, who would refuse when their first blow on the BAC was only 0.03? That doesn't make any sense. Second, the DataMaster could have had a 5-way valve problem. You need to hire a lawyer who knows the DataMaster and can obtain the repair and maintenance records to see if there is a problem with that particular machine.

    Good luck.

    This answer is my personal opinion, offered for informational purposes only. It is not a legal opinion, nor is it legal advice, nor does it create an attorney-client relationship with anyone reading it. It is advisable that you consult an attorney who practices the type of law your question concerns, in the state where your question is at issue.

    Linda M. Callahan
    Author of the Washington DUI Practice Manual
    Callahan Law
    Driven in Defense of Those Who Drive
    253 219 1712
    206 219 5645
    360 426 8788
    877 DUI ANSWer
    www.dui-defender.net
    www.washingtontrafficlaws.net

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