I was extremely nervous and have never been put in this situation. At the station, I talked to a public defender on the phone and even remember her name. She informed me that it was a good decision to not waive my rights (before taking the test, which pissed him off) and she said "never refuse to take it" so I then confirmed that I would take it. When the police officer took my test, he did one attempt and claimed it was an automatic refusal. I then said, I was not refusing. I didn't understand what you were asking and he refused to let me try again.
First off, you need to retain an experienced criminal defense attorney to represent you. You will need to request a DOL hearing and let the judge know the facts behind the alleged "refusal". You have grounds for not having the automatic 1 year license suspension for a refusal imposed. Strict time limits apply for requesting the hearing so do not delay. When it comes to the criminal charge, an attorney will look at all of the evidence in your case and make a determination what your best options are.
Here's the issues in play here.
1) They're going to say you deliberately didn't blow enough, and so, call it a refusal by "conduct".
2) That being said - there are good issues you've presented that may help your attorney to get your refusal suppressed, or perhaps make a good trial case out of this - both at the DOL hearing AND in court.
You need a skilled DUI attorney as soon as possible!
Feel free to call me for a free consultation - 425-424-9401.
The obvious answer from everyone will be to hire an attorney. What is needed is an investigation into the database of the breath machine. The length of your breath in time should be recorded, and from that we can argue that you did not refuse the test. Additionally, a review of this particular officer's practices and record may demonstrate his propensity to claim refusals at a higher rate than other officers. You have a limited time to request a hearing with the department of licensing, and a limited time to obtain audio and video materials which may prove your innocents.
Give me a call today to set up a free consultation. We would need to get started on this as soon as possible to give you the best opportunity. 253-383-7777.
these breath machines which determine guilt or innocence in drunk driving cases are not exactly the reliable devices that law enforcement would have us believe. Yet another example of that unreliability is the fact that the results will vary depending upon the breathing pattern of the person being tested. This has been confirmed in a number of scientific studies.
In one, for example, a group of men drank moderate doses of alcohol and their blood-alcohol levels were then measured by gas chromatographic analysis of their breath. The breathing techniques were then varied.
The results indicated that holding your breath for 30 seconds before exhaling increased the blood-alcohol concentration (BAC) by 15.7%. Hyperventilating for 20 seconds immediately before the analyses of breath, on the other hand, decreased the blood-alcohol level by 10.6%. Keeping the mouth closed for five minutes and using shallow nasal breathing resulted in increasing the BAC by 7.3%, and testing after a slow, 20-second exhalation increased levels by 2%. “How Breathing Techniques Can Influence the Results of Breath-Alcohol Analyses”, 22(4) Medical Science and the Law 275.
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