Because the officer says that you either refused to take a blood or breath test when properly asked to do so, OR you gave an "insufficient sample" for a breath test, and he considers it a refusal.
Its VERY impoortant that you send in a letter to DDS requesting a hearing- otherwise your drivers license may be suspended for a whole year. I'm sure that you don't want that. the letter MUST be mailed within ten days of your arrest. I'm sure you will hear from many attorneys... so fell free to contact my office as well. 770-744-0544.
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That is a question for your attorney once they review the case. No one on the internet can answer this.
Mr. Driessen is a former Deputy DA in Orange County with over 8 years of criminal law experience. Nothing stated on this site shall in anyway be construed as legal advice, or as creating any attorney client relationship. If you would like to hire Mr. Driessen, feel free to contact him at www.theocduiguy.com.
Was this the breath test on the scene of arrest or at the police station? The hand held device at the scene does not count. As Mr Ladd said the fact that you gave multiple samples may indicate they were insufficient to get a reading. Have an attorney help you so your license don't get suspended.
I agree with Mr. Ladd that it is either that you refused to take the official test (the preliminary breath test does not count for this) or you blew an insufficient sample and the officer deemed that insufficiency to be a refusal. If you have a refusal, you probably also have lost your license. You can appeal the suspension of your license, but you must do so within 10 days of your arrest. Call me if I can be of assistance.
Allen R. Knox
125 TownPark Drive, Suite 300
Kennesaw, GA 30144
If you toon the test on the side of the road, but refused to take an additional test at the jail or police station, they will call that a refusal. The roadside test is not the "State's Test" and the numerical result is not admissible in court. They should have read you the Implied Consent Notice right after arresting you and asked for another test. That would be the one they reference when they put "refusal" on your citation.
They would also put you down as a refusal if you agreed to take the test at the jail but they thought you were purposefully avoiding giving a good sample. We see that a lot when people pretend to blow but don't.
The fact that you do not have an Intoxilyzer test result in your case may work in your favor. If you would like to discuss the facts of your case in depth, give me a call.
Most people mistake a road side alco sensor, which is a breath testing device, with the official state administered breath test, which occurs after arrest. After you are arrested the officer is required to read you your "implied consent rights" before asking you to take a breath/blood/urine test. Since the officer is claiming you refused to take the breath test you only have 10 days to request an administrative hearing or your license will be suspended for 12 months with no driving privileges.
Based on the limited information in your question it appears that you are confusing the Preliminary Breath Test (PBT) with the official State of GA test that could be Breath (Intox 5000), Blood or Urine. Agreeing to take and blowing in the PBT 4 times (usually an Alcosensor in my area of the state) does NOT mean that you took the official State test. If you are asked to take the Official State test and you "refuse" to take it or the officer believes that you weren't really trying to perform the test - you can be charged with what is known as a DUI Refusal. A "DUI Refusal" charge carries the same criminal penalties as a regular DUI. However, it also has a 12 month HARD SUSPENSION FOR YOUR DRIVERS LICENSE. It is very important that you retain the best DUI Defense Attorney that is available to you ASAP!!! Finally, if you don't file a request for an Administrative License Suspension Hearing (ALS) within 10 BUSINESS DAYS your license can be AUTOMATICALLY SUSPENDED by the State! And this will happen usually before you have even been to Court on the actual DUI charge!!!! Please act on my advise and retain an experienced and knowledgeable DUI Defense Attorney ASAP!!! - Because of the severe and life long effects a DUI CONVICTION can have, retaining an attorney can be the best investment you could make in your and your families future! Good Luck!!!
The information provided in this response to a question is not legal advise and is provided only for general information purposes. My response should not be taken as legal advise as no attorney / client representation exists. Additionally, the information given in this answer is specific to the State of Georgia only and should not be applied to any other state.
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