I agreed to a breath test and came back insufficient twice and officer never advise that i didn't successfully complete the breath test and assuming i completed the breath test i decline the blood test when the officer asked me. I'm being charged for refusal now. He claims he read the implied consent law but he never did otherwise i would have requested to retest.
Yes, there is a specific form they have to fill out and send to DMV. Request a hearing with the DMV within 10 days from the arrest, otherwise you are risking losing your license for a year (if a first).
Contact some attorneys and start finding a way to hire one. This is definitely not something you want to take on by yourself.
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Do yourself a favor and hire an attorney. There is lots of legal activity surrounding blood draws, refusals and the 4th amendment. An attorney can best position your case for victory. Doing this on your own is certain failure.
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Administrative Law Lawyer
The Officer is supposed to read the implied consent law. If the machine was broken, it is a legal defense to a refusal. You need to consult with an attorney so the attorney can prepare the legal arguments to show that the machine was not operating to standards.
Seth Weinstein, Esq.
Los Angeles Criminal Defense Attorney
This reply should NOT be considered a legal opinion of your case / inquiry. At this time I do not have sufficient factual/legal documentation to give a complete answer to your question and there may be more to the issues you raised then I have set out in my brief reply.
DUI / DWI Attorney
Any peace officer who is attempting to obtain a sample under the implied consent law must advise you of the consequences of refusing.
DUI / DWI Attorney
Yes and no. Officers are required to fill out a form called a DS-367 which they must sign and submit to the DMV. On the back of the DS-367 there is space for them to notate your response/refusal, however they often do not fill this portion out and simply say that they read you the admonishment and that you refused. Amusing there is no other evidence like a video of the refusal, this is now your word vs. the officer's word which you will need to fight in your DMV and court hearings.
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You need to hire a DUI defense attorney NOW. A refusal, if legitimate, will cause automatic 1 year suspension. If you in fact provided two breath samples, you may have a very defense to the refusal claim. Bottom line is yes, they must advise you that a refusal violates implied consent and will trigger the 1 year suspension. You should speak with an experienced DUI attorney asap. My office defends DUI cases and we can provide you with a free evaluation of your case. 888-447-8282
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