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breathalyzer malfunctions = refusal?

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jane chip

Junior Member
What is the name of your state (only U.S. law)? new jersey
my husband was pulled over the other night and blew twice at the side of the road. they say there was a presence of alcohol and they brought him back to the police station for a breathalyzer. he blew twice there but the machine malfunctioned twice. they asked to bring him to a neighboring police station, but he refused, saying he had blown 4 times, that was enough. he was issued a summons for both dui and a refusal. is there any case history regarding how many times one has to perform a breathalyzer if the machinery doesn't work. can he get out of this? they have no evidence for a dui and is this really a refusal?
 


Ohiogal

Queen Bee
What is the name of your state (only U.S. law)? new jersey
my husband was pulled over the other night and blew twice at the side of the road. they say there was a presence of alcohol and they brought him back to the police station for a breathalyzer. he blew twice there but the machine malfunctioned twice. they asked to bring him to a neighboring police station, but he refused, saying he had blown 4 times, that was enough. he was issued a summons for both dui and a refusal. is there any case history regarding how many times one has to perform a breathalyzer if the machinery doesn't work. can he get out of this? they have no evidence for a dui and is this really a refusal?

Yes it is a refusal. And a breathalyzer is not the ONLY evidence of a DUI. he smelled of alcohol. He apparently did something that resulted in him being pulled over. There are the observations of the police officers.
 

tranquility

Senior Member
they asked to bring him to a neighboring police station, but he refused,
It was a refusal.

saying he had blown 4 times, that was enough
Was he tired now? My goodness. It is remarkable how stupid people become when they're drunk.

is there any case history regarding how many times one has to perform a breathalyzer if the machinery doesn't work.
Until a valid sample is taken.

can he get out of this?
It depends on what the evidence is against him.

they have no evidence for a dui and is this really a refusal?
They had a reason to pull him over, they had a reason to think he was under the influence, they have the demeanor after the arrest, they have *lots* of evidence. In some states the refusal alone may give rise to a rebuttable presumption against him. (I don't know if NJ is one of those states.)
 

jane chip

Junior Member
breathalyzer malfunction=refusal

thanks for your response. so at the end of the day, will it come down to the field sobriety tests and the video/observation at the station? he said he did well on his tests, he is a former state trooper and knows the drill. this is his 2nd dui, it would have been 10 years since his first dui, on june 30. will the length of time between the charges help at all?
 

FlyingRon

Senior Member
Well they have him hard on the refusal. He can lose his license for at least seven months and pretty darn near as long as the judge cares (20 years) and between $300 - $2000. Then there's the DUI.

The look back for counting offenses is 10 years. He'll need to look carefully at the dates.

If he was a state trooper, then he should be smarter. He also should be smart enough to know he needs a specialized attorney familiar with cases in the court he is to be tried in.
 

Zigner

Senior Member, Non-Attorney
thanks for your response. so at the end of the day, will it come down to the field sobriety tests and the video/observation at the station? he said he did well on his tests, he is a former state trooper and knows the drill. this is his 2nd dui, it would have been 10 years since his first dui, on june 30. will the length of time between the charges help at all?
A drunk rarely thinks (s)he does poorly on the FST :rolleyes:
 

BigMistakeFl

Senior Member
Refusal includes trying to blow into it incompletely, or partially blowing, trying to puff air into the cheeks, etc. It can also be for simply not blowing hard enough. The truest reading, from my understanding, comes from deep within the air sacs in the lungs. To try to prevent that in any way will result in failure to get a reading. These are considered refusals.
 

FlyingRon

Senior Member
I own a PBT. I've tried all sorts of dodges playing with the thing. It's pretty hard to beat (I could probably fake it out high, but I couldn't reduce my BAC).
 

BigMistakeFl

Senior Member
I don't think you can fake it out either. Many have tried, but the result is almost always regarded as a refusal. When blowing in the breathalyzer, the cop generally (Carl can help about the procedure) tells you to "blow, blow, blow, harder".... and so on.
 

jane chip

Junior Member
breathalyzer malfunction= refusal

thanks everyone. i think he is going to have to live with what could be an unhappy outcome. as lawyers, do you think that offering a peformance based bonus to our lawyer will have any impact on the focus of the attorney and outcome? we are ok financially and my husband not driving will be a huge headache. we've located an attorney who has good relations with both the prosecutor and local judge and experience with dui's. do you think that will help?
 

BigMistakeFl

Senior Member
Maybe someone else can chime in, but I don't think you'll find a lawyer to follow that route. Most of the defense attorneys have a fairly "set" fee structure. He or she will pull out the standard contract, break down the fee situation which will probably be fundage up front and only up to and excluding trial. That usually requires more fundage. But it can't hurt to ask!
 

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