What if I tried to blow and there was no reading?
If you attempted to provide a breath sample and were unable, the officer will claim that you refused to provide a sample. 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 honestly attempted to provide a sample, the judge might remove the license suspension and not consider the refusal as evidence against you at the trial of the case.
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 established that my client did indeed attempt to blow into the breathalyzer machine but a sample was not obtained and that my client simply did not “Refuse” as the Darrian police officer stated on direct examination. The police officer agreed with me that my client tried to provide a breath sample. I followed up by asking, “And it did not seem that my client was playing games with you”. The police officer said that it seemed like he was trying. The judge dismissed the Statutory Summary Suspension because my client did not refuse, (the DUI case was previously ruled a “not guilty.” Both parts of my client’s DUI case was dismisse