Took Breath test It was broken

[Cavy]

What is the name of your state (only U.S. law)? Kentucky
I had drank 4 beers in a six hour time span on a empty stumech. Then waited 2 hours before I drove. Felt totally sober.
My car caught on fire while I was going down the Hwy at 60 Mph. I had inhaled a few lung fulls of the black smoke before I could get stopped.
Then the firemen assumed I was drunk because I still had beer on my breath. Beer on a empty stumech can keep the smell of it for hours.
I was tired, and the smoke could have easily made my eyes red and made me dizzy. I know I was not drunk. I did not feel dizzy till after breathing that smoke.
And also I recently found out that I'm hypoglycemic also. My blood suger levels drop if I don't eat.
the officer gives me the standard test. At that time after all I'd been thru. There was no way I was gonna pass the walk the line stuff.
Then he ask me to take a breath test.
I agreed to and he said it was not working. then went and talked to a constiple. Then they came back over to me and ask me to take it again.
I did and again they said it did not work.
Then he placed under arrest and asked me if I would take a blood test. I said ok.
Then when we get to the hospital he told me I would have to pay for it out of my pocket.
I'm on a fixed income and told him so. And then refused to take it. Because I could not afford that.
He gets upset and literally drags me out to his car as he tells me that by refusing I was admitting my guilt. I then offered to take it. But he told me it was to late now. Off to jail I went.
Now this is the first DUI I have had in over 20 years.
And as I pointed out I was tired, and if I was having a hypoglycemic, attack as well as breathing in that black smoke. Do I have a defense there?
I got the feeling that this sheriff was trying to railroad me. Because of the timing of what he said and did. And also there was another sheriff not a mile down the road rerouting traffic around my burning car.
He could have easily called him to bring his tester to the scene.
I'm confused in a way. Do they have to have proof beyond any doubt that your guilty?
Or can they make that judgment them self right then?
How do I know if that tester was broken. I never saw the reading on it. It could have just as well read I was legal. And he lied. People do that you know. Even Law enforcement.
What are my options here?
Thank you for all your help.What is the name of your state (only U.S. law)?

[RatPackLar]

This was not for your first DUI, just the first in over 20 years, is that a correct assumption on my part?

You refused the chemical test, and the reasons do not matter, the refusal alone, will let your local DMV, yank your license.

BAC is not measured by stomach content, is is measured by breath, blood, or urine, you should have taken the blood test, if you thought you were sober.

The refusal, only hurt you. As now, you have no actual proof, as to your sobriety, whilst operating a motor vehicle.

All the points you make, may or may not help you, but to fight this, you gotta pay a lawyer to do it for you. You are gonna have to pay a lawyer to fight this for you, and even then, there are no guarantees.

Since you are on a fixed income, and could not even pay for the blood test, you agreed to take. You should be worried.

Only your lawyer advise you, the net, well you can get some advice, but again, only advice.

You are in deep trouble on this.

[BigMistakeFl]

It may be argued that the breath testing machine was working perfectly, that you were not blowing hard enough. This is still considered a refusal. Refusing the blood test sealed it for you though.

As for guilty vs innocent, it will be your word against the cops'. Who do you think a jury would be more likely to believe?

[RatPackLar]

Right again, and you need to consider this. Your refusal, means that your state DMV, will automatically yank your license for a minimum of one year, before you even get to court. Check your local state DMV laws to be sure, but the year is pretty standard.

See you are looking at two separate actions here. The court system will hit you on the criminal side, and your state DMV, will hit your license, and yank it, on the ADMINISTRATIVE SIDE. My state MI, for example, and my idiot brother got hit twice and refused the BAC tests both times, Now this was 7 years ago, but I had to help him out on this and here is what happened.

He got the DUI 1 and refused. Now the court system did not even get him in front of them, to plead guility or innocent, for almost 90 days. However the MI DMV had him in 30 days, from the date of the refusal, and they yanked his DL, for one year, BEFORE HE EVEN HAD TO GO TO COURT. The DMV, held an administrative hearing, on his refusal to submit to the chemical tests, and they found him guility of the refusal, and yanked his DL that day.

He then got hit again, 6 months later, and they really pounded him for that. Now again it was 7 years ago, but from what I have seen to date, they hit you harder as the years go on.

In MI, they hit you for $1000.00 a year, as a driver license responsibility fee, for two years, after you get your DL restored, and pay for all that.

The system does not play around with DUI anymore. and with DUI, the reality is you are guilty until proven innocent.

[seniorjudge]

Originally Posted by RatPackLar

...

The system does not play around with DUI anymore. and with DUI, the reality is you are guilty until proven innocent.

...

Of course, that is incorrect. Taking the breath test has to do with the civil side of drunk driving. You get a license from the state (a privilege). If you do not take a test when asked to, you lose your license. It has nothing to do with guilt or innocence of the drunk driving charge.

If I am stone cold sober and the cops thinks (wrongly) that I am drunk and I refuse the test, then I lose my license.

[RatPackLar]

Like I said, as this poster affirmed. You can refuse to blow, not even be drunk, and the SOS will still pound you for the refusal. You can then go to criminal court, be found not guilty of DUI. However, the SOS still takes you out, for the refusal. Like I said before! The system is set up to where you are guilty until proven innocent.

[justalayman]

rat's; are you missing he did not refuse to blow? officer claimed it was broken, He refused a blood test (not that all of that makes any real difference)


cavy, a blow test is not the evidence used to convict you so even if the cop down the road had a breathalyzer, all that would do is allow them to take you for a blood test, which you had the chance and you refused.

the officer is going to say you were to drunk to make a reasonable decision and that is going to get you convicted.

and to the smoke; BS

the hypoglycemia:BS

to this:

Felt totally sober

Most really drunk people I know say the same thing.

. Do they have to have proof beyond any doubt that your guilty?

Not in the situation you have presented. They tried to and you refused to allow it. At that point, most states allow that refusal as evidence of guilt.

[RatPackLar]

Is for anybody to prove they did not refuse to blow. Think about it, you do not blow, the cops say you refused, you say it was broken, now who do you think they are gonna belive. That one is usually an automatic yank of the DL, and you do not get to go into a court of law to fight that one, nope, you get to go to an Administrative Hearing with the DMV, and the burden of proof there, is like in Civil Court. A preponderance of the evidence, which really means, do they have more proof of your guilt, they you have saying you are not guility. Usually the DMV wins. Food for thought!

[BigMistakeFl]

What exactly did the cops say about the breath test? Did they say, "Our machine is broken", tried again and said, "our machine is still broken".

Or was it something more like, they couldn't get a good reading? That's not the same thing. Carl can probably offer testimony here, people try a weak blow, or blow only air from the mouth, etc. The breath test works best when the lungs are deeply exhaled. If your "blow" can't get a decent reading on the machine, it's not broken, rather can be considered refusal.

[RatPackLar]

That was a chemical test, they asked you refused. Even if the unit was broken, there was another method of chemical testing availiable, blood, and you refused it. Other issues come into play here, which I will get to.

You say there was no way you could pass the walk the line stuff, which are called Field Sobriety Tests FST's. Does that mean you took those tests and failed?, or did you refuse to take those as well. Those results can also be used against you.

I do have a question here, something does not add up. From what I have gathered from your story, you claim that the roadside hand held breathalyzer unit was not working, and this happened at the time of the stop. Is this correct?

Typically the roadside BAC results are just enough to get you arrested. They then take you to the station and ask you to blow into the stationary breathalyzer, and they use those results to actually charge you.

You can actually take the roadside breath test, fail, they arrest you, take you to the the station, ask you to blow into the stationary unit, you refuse, they charge you with refusal based on that request made at the station. I am wondering why they did not just take you to the station, and ask you to blow?

Typically the only times they do a blood draw, are if the offender requests it, or you refuse, and they can get a warrant for a forced blood draw. Each state is different and I am going off Michigan and what happened to my brother. You do need to research your own state laws.

What happened after you left the hospital, they obviously took you to the station, booked you in, and tossed you in a cell. Did they ask to you blow at the jail? If you were so willing to blow on site, they should have just taken you to the jail, and let you blow there. That is what they usually do anyway.

Did they ever read your chemical test rights to you, and make you sign acknowledging that you were given these test rights? If no, you might have a shot at supressing the refusal based on that, and the DMV might toss the whole thing, at the admin hearing and the criminal courts will have a harder time convicting you with no actual BAC test results, and might cut you a deal based on that. Again, you could have refused to sign the chemical test rights paperwork as well.

It just sounds strange, if hand held unit was broken, why they just did not arrest you, and take you to the station, and ask you to blow into the unit on site, that was working? They do not need the results of the hand held unit, to establish probable cause to arrest you. The smell of booze, your FST results, your demeanor at the stop, the testimony of the FIRE FIGHTERS, can all be used to establish probable cause to arrest you. Now once they arrest you, they take you in, and ask you to blow. They do not just do the blood draw run to the hospital, unless something prompted then to do so.

Only your lawyer can advise you on the possible outcomes, but those questions I ask you, are things you and your lawyer should be discussing.

[Cavy]

1 there was no stop. And the roadside hand held breathalyser unit was not working when he asked me to blow into it before he arrested me. That was at least what he told me. And yes blew from deep in my lungs. And as far as I know the the damed thing could have been working and I was not legally over the over the limit.
2 He did not ask me to blow into the stationary unit at the jail.
3 and no he never asked my to sign any papers about the blood test. In fact he never explained any of my rights to me about it till after he was taking me back to his car.
Thats why I'm believe he was playing me in some way to make sure I was found guilty of it. Or setting me up so to speak.

[paguy88]

Originally Posted by RatPackLar

Is for anybody to prove they did not refuse to blow. Think about it, you do not blow, the cops say you refused, you say it was broken, now who do you think they are gonna belive. That one is usually an automatic yank of the DL, and you do not get to go into a court of law to fight that one, nope, you get to go to an Administrative Hearing with the DMV, and the burden of proof there, is like in Civil Court. A preponderance of the evidence, which really means, do they have more proof of your guilt, they you have saying you are not guility. Usually the DMV wins. Food for thought!

also the DMV employyes the person and pays the person making the decision...

now isn't that fair?

in my state the only requirment for this person who says if you can keep your DL or not is a high school diploma..

[RatPackLar]

But it is their game, and they got more resouces at their disposal, then you do, to fight them. The HS Diploma crack, well, look at it like this, if a moron has a bat in his hands, and you do not, and he takes a swing at you, and cracks your head open, are you really gonna be thinking about the level of his education. Ahh no, he had the bat, you had nothing, and he cracked your head open. In the end, who looks dumber, the uneducated guy with the bat, or the smart guy, laying on the ground with his head cracked open.

There had to be a stop, I mean come on here, the cops cannot do FST's on a rolling car, they had to stop you at some point.

Nobody was playing you to be found guility, hell, they asked you to take a blood test, and you did not, cause you say, you had no money to pay for it. But, when the cop dragged you out of the hospital, and told you you screwed yourself, YOU ALL OF THE SUDDEN, FOUND THE CASH, AND WANTED TO TAKE THE TEST. Hmmmm why was that?

All that can and will be used a againt you.

Again, who do you think they are gonna belive, you, the DUI, or the Cops, who are paid to protect and serve.

Is it right, probably not, does that matter, nope. Unless you got some big bucks, and can hire a lawyer with some real fire power, you are going down, on this DUI.

The law is not about right and wrong people, it is about proof of innocence or guilt. Right and Wrong are TV show bullcrap, which is where most people get their ideas about the law, the legal system, the cops, and how it all works.

In the real world it is never about that. It is about, the burden of proof, reasonable doubt, and a preponderance of the evidence.

OJ got off, on the criminal side, but got nailed in civil court

[paguy88]

Originally Posted by RatPackLar

OJ got off, on the criminal side, but got nailed in civil court

much much lower burn of proff in cival court..

speaking of OJ what is goin on with his situation in vegas?

I have not heard anything about it?

[Ohiogal]

Originally Posted by RatPackLar

Is for anybody to prove they did not refuse to blow. Think about it, you do not blow, the cops say you refused, you say it was broken, now who do you think they are gonna belive. That one is usually an automatic yank of the DL, and you do not get to go into a court of law to fight that one, nope, you get to go to an Administrative Hearing with the DMV, and the burden of proof there, is like in Civil Court. A preponderance of the evidence, which really means, do they have more proof of your guilt, they you have saying you are not guility. Usually the DMV wins. Food for thought!

WRONG. Civil court does NOT ALWAYS require preponderance of evidence but rather clear and convincing evidence.