I tried to blow into the breathalyzer, but there was a problem with the breath machine and there was no reading?
What if you attempted to provide a breath sample by blowing into the breathalyzer or breath machine and were unable to, the police officer will claim that you refused. This will automatically increase the period of the license suspension under the Statutory Summary Suspension. For example: if your license suspension would have been 6 months if a sample was provided, the suspension will increase to 1 year. If this is your second or greater DUI in the last 5 years, your suspension will increase from 1 year to 3 years.
What can be done to show the judge that I tried?
I can show the judge both at the hearing on the license suspension and at trial that you attempted to provide a breath sample. If the judge agrees that you attempted to provide a sample, the judge will remove the license suspension. Furthermore, the failure to provide a breath sample will not be used against you at the trial.
Real World Example:
I had a client who attempted to blow, but a “sufficient” sample was not obtained. The police officer listed it as a refusal. On cross examination, I established that my client did indeed attempt to blow into the breathalyzer machine. However, the sample was not obtained. My client simply did not “refuse”, as the Darien police officer stated on direct examination. The police officer agreed with me that my client tried to provide a breath sample. I continued the cross examination by asking. “And it did not seem that my client was playing games with you”. The police officer admitted that it seemed like my client was trying. The judge ruled that my client did not refuse to provide a breath sample. The judge rescinded the Statutory Summary Suspension. The DUI tickets were previously ruled a “not guilty.” Both parts of my client’s DUI case was dismissed.
