the officer asked me to do the test on the street and I did it one time then he ask me again and after the second time he said you have been drinking and then he said why didn't you blow it right. I answered I don't now how to use it and it's my first time though. then he took me to the police station and asked me to do it again while I don't know for what reason I have to do it again so I told hem I already done the breathing test do I have to do it again. Then he, say no and he kept silence and he was filling some paper. Then, he took me to stay for 4 hr.
I got my papers after that and I found out that he marked me refused ? while I didn't say yes or no
The test performed on the side of the street was probably a "portable breath test machine". These machines are not accurate and are not admissible in court. The one at the station was the one that would have been used against you at trial. You should hire an attorney asap who can see if there is video maintained of the event and potential offer of a breath test. There are very strict deadlines regarding appealling the refusal to the court.
Attorney Chris Beck
Beck Law Office, L.L.C.
1370 North Fairfield Road
Beavercreek, Ohio 45432
(937)426-4000 phone (24/7)
Contact an attorney immediately. In DUI cases, spoiling of evidence, or its outright destruction work against you and the only way to guarantee its safe keeping is through motions brought by your attorney. From the facts you presented, you could have some defenses to this charge as it sounds like there were some complications with the testing/the officer.
You need to retain legal counsel immediately. I often see "refusals" where the person did not, per the officer, blow into the device properly. This is a fact question, i.e., did you refuse.
The first issue is whether or not he had a basis to pull you over. Any de minimus traffic violation is enough. Then, the question is whether or not the length of the detention was proper. If there are additional crimes discovered a longer detention is permissible. If not, the detention can only be as long as necessary to effectuate the reason for the original pull over.
You do not indicate if you submitted to the standard field sobriety tests (SFSTs). These consist of the horizontal gaze nystagmus, the walk and turn, and the one leg stand. Never perform these tests as they are designed to provide additional evidence to justify the arrest. Never submit to a portable breath test. But understand, if you do not submit to these tests you will likely be arrested. But if you do submit you will also likely be arrested.
As to whether you should or should not take the breath test at the station depends on many factors. Have you been drinking? How much have you been drinking? Have you been convicted of an OVI in the past? How long ago? What state? Do you have a CDL?
If you submit and fail the test your license will be suspended administratively for 90 days if it is your first OVI. If you refuse, your license will be suspended administratively for one year. You can obtain driving privileges for work, school, and medical appointments. If convicted of the charge the length of the administrative suspension will be credited to any suspension on the criminal charge. If you successfully defeat the OVI you can still be required to serve the administrative license suspension (ALS) unless you successfully appeal the same. This must be done within 30 days of the offense.
Depending on the police agency that pulled you over their may be video in the patrol car. There may also be video at the station, though often there is no audio. An attorney should conduct discovery to determine if this evidence exists.
You should retain legal counsel immediately. You proceed forward without counsel at your own peril. There is no possible way anyone can thoroughly explain an OVI case in one post on AVVO.
It is crucial that you contact an attorney. A refusal comes with a lengthy mandatory license suspension. if the "refusal" was based on technological or user error, it may not be ascribable to you. A competent attorney will subpoena the police dash cam video and corroborate that you did in fact submit to the breathalyzer. Then, there are grounds to attack the officers credibility. Call a criminal defense attorney and protect yourself and your license.
Typically the road side tests or Field Sobriety Tests (FSTs) are not the tests used for the purpose of the charge of refusal. These tests are only used for "screening" to evaluate if the person should be placed under arrest for a DUI. If a person is placed under arrest for a DUI and then refuses the requested test after that point it would trigger a "refusal" charge.
You need to get an attorney retained ASAP to file a challenge to the license revocation for refusal and to handle your criminal charges. The issue you presented is definitely a red flag that an experienced DUI defense attorney will want to fully investigate and probably litigate in court. There may be other issues aside from the one you mentioned too. Use this website to find a few candidates in your state who devote their practice to DUI defense, then take the time to call them and find the best fit for you.
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