I was booked for a refusal and i have a prior from 9 and half years ago. I would like to challenge DMV hearing the fact that the police officer did not advise me that i did not successfully completed the breath test (the police report states the following: Attempted to supply me with two breath samples. James would not blow into the Datamaster and both attempts were insufficient) and when the officer ask me for a blood test i declined it because i was under the impression that i had completed the breath test. The police officer also claims on the police report that he read me the Implied Consent Law witch is not true and if it was true why didn't he note down my response on the police report. Isn't the purpose of him reading it to give people a chance not to refuse and complete the test?
It's impossible to tell you if that is a good defense because we have no idea what the details of the report are, as well as how the various forms are filled out. Was the breath machine even working properly? What objections will you be making to the dmv's evidence? Was it even a lawful stop?
There are so many different ways to attack this, you really need to hire someone with the experience to do it.
As my colleagues observe, there are many facets to presenting a credible defense at a DMV hearing. From what you state, you may certainly assert your factual defense and the cop will testify as to the accuracy of his police report. It will then be a question of credibility for the hearing officer.
Be aware, though, that a police officer need only ask you once about taking a chemical test. If you say no, or even say nothing, he can note this as a refusal and is under no obligation to give you a second chance, even if you ask for one.
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