usThe officer can certainly "SAY" you refused. Proof of the refusal may be found elsewhere however. The machine printout might give a clue and certainly one or more videos of the test may be available. Many of these devices have air flow switches that indicates tone or light as well. My guess is that an expert DUI lawyer in Ohio should review your case. Tim Huey comes to mind. Good luck!
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Cops can "say" you refused if they didn't get a "valid" result, but that obviously doesn't mean that you "actually" refused the test - this is something that will ultimately be determined by the trier of fact, either a judge or jury.
If the officer placed you under an Administrative License Suspension (ALS), you can appeal that suspension and the judge will determine the "refusal" issue as far as the ALS is concerned.
Did the breath testing machine print "Deficient" or "insufficient" sample, "Invalid Sample" or was there a print out that said "Refusal"? Also, what machine were you blowing in to? If it was one of the newer Intoxilyzer 8000 machines, they record the volume of air that was blown in to the machine, this may help determine whether you were blowing or not.
In short, there are lots of issues to address and you should contact an Ohio attorney. You are welcome to call me and I will direct you to a qualified OVI attorney in your area. I am in the Cincinnati area, but I am glad to answer any additional questions you may have.
Yes, a police officer can mark you as a "refusal," even though you attempted to take the breath test. There are numerous defenses to why a person cannot complete the breathalyzer. That is why it is important to retain a DUI Defense Attorney, who has been trained on the Breath Testing Machines, like the BAC DataMaster and the Intoxilyzer.
As a DUI police officer, I regularly had people that could not complete the test breath test, and the machine registered "invalid sample," or insufficient sample. A DUI officer is trained to then get a urine test or blood test if a subject cannot complete the breath test. But, unfortunately, many police officers do not do what they are trained to do. That is another reason why you need an Attorney that FOCUSES on DUI!
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