You have asked this question several times before and the best answer is hire an attorney. Here is what is required to prove a refusal.
Special Enhancement – Refusing to submit to a Chemical Test
• To prove this allegation, the People must prove that:
• 1. A peace officer asked the defendant to submit to a chemical test to determine his blood alcohol content;
• 2. The peace officer fully advised the defendant of the requirement to submit to a test and the consequences of not submitting to a test;
• 3. The defendant willfully refused to submit to a test.
A Officer Fully Advised of the consequences of a Refusal if
• 1. Gave the option of blood or breath test;
• 2. Told he does not have the right to have an attorney present before saying whether he will submit to a test, before deciding which test to take, or during administration of a test;
• 3. If he refuses to submit to a test, the refusal may be used against him in court;
• 4. Failure to submit to or complete a test will result in a fine and mandatory imprisonment if he is convicted of driving under the influence or with a blood alcohol level of 0.08 percent or more;
• 5. Failure to submit to or complete a test will result in suspension of his driving privilege for one year or revocation of his driving privilege for two or three years.
Without knowing more on your case it is hard to tell if it’s a valid refusal. Yes you can have a refusal if you fail to complete a test and refuse the other method, in this case blood. Simply hire an attorney for the DMV and court process.
First of all, who would refuse when their first blow on the BAC was only 0.03? That doesn't make any sense. Second, the DataMaster could have had a 5-way valve problem. You need to hire a lawyer who knows the DataMaster and can obtain the repair and maintenance records to see if there is a problem with that particular machine.
This answer is my personal opinion, offered for informational purposes only. It is not a legal opinion, nor is it legal advice, nor does it create an attorney-client relationship with anyone reading it. It is advisable that you consult an attorney who practices the type of law your question concerns, in the state where your question is at issue.
Linda M. Callahan
Author of the Washington DUI Practice Manual
Driven in Defense of Those Who Drive
253 219 1712
206 219 5645
360 426 8788
877 DUI ANSWer
Sign up to receive a 3-part series of useful information and legal advice about DUIs.