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.
You can always challenge whether your refusal was willful or not, however, there are probably certain time restrictions for appeal. Find am attorney immediately and find out the procedure or call the DMV.
Attorney Gregory Spink is licensed in North Carolina, with a focused practice in Mecklenburg and Gaston Counties. Nothing is intended in this post to serve as legal advice. It is my opinion based on studying the law and passing the Bar Exam and should not be construed as legal advice. You should always contact a local attorney, who is familiar with local rules. Each case must be judged on a case by case basis with all evidence being reviewed by a licensed attorney. Nothing in this post should be construed as creating an attorney and client relationship.
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.
Every case is different, and this is not intended to be anything other than helpful information. This in no way creates an attorney-client relationship between us. If you'd like to speak further about this answer, feel free to call me for your FREE CONSULTATION at 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.
This are great cases to fight. The BAC machines require so much breath, that many folks have had the same problem ~ and I have had many "refusals" suppressed on that issue. Get a good local lawyer.
I am not an insurance rep and make no recommendation on any company.
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.
Every case and situation is different and vary greatly depending on specific facts. My posts are not to be considered complete answers to each question. My posts do not constitute an attorney/client relationship.