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  1. #1
    Join Date
    Dec 2010
    Posts
    1

    Default Two Separate Test with Datamaster, Results Are Below .044

    My question involves criminal law for the state of: California

    The DataMaster Subject Data Report from Los Angeles County Sheriff's Station reads as follow:

    test Date: 06/05/10
    test Time: 3:13:08
    Location: Industry Stn
    Subject Sample 1: 0.037
    Try: 5
    Simulator Result:
    Subject Sample 2:
    Try:
    Simulator Result:
    Code:
    Try:
    Simulator Result
    Subject Sample 3:
    Code:
    Try:

    As you can see per above, the machine only registered one number and it, therefore, gave "insufficient sample" print out.

    I then tried again for the second time and the results are:

    test Date: 06/05/10
    test Time: 3:19:30
    Location: Industry Stn
    Subject Sample 1: 0.044
    Try: 5
    Simulator Result:
    Subject Sample 2:
    Try:
    Simulator Result:
    Code:
    Try:
    Simulator Result
    Subject Sample 3:
    Code:
    Try:

    under title 17 , the machine must register two numbers that are not apart by more than .02 . This is the case. However, this happened on two separate tests rather than one and the police was not able to observe the result at the scene. I was given a DUI with refusal allegation due to the "insufficient sample" print out twice. I am about to also lose my license.

    based on the above explanation, I would like to see if I this is considered refusal or if DMV can suspend my license. My most concern is the DMV hearing as I do not think that the court can charge me based on this evidence.

    By the way, the field sobriety test is full of lies by the officer as if I failed all the tests. The police report does not mention anything wrong about my driving except that i was going 10 miles above speed limit.

  2. #2
    Join Date
    Sep 2010
    Posts
    19,901

    Default Re: Two Separate Test with Datamaster Results Are Below .044

    You're going to need a good lawyer.
    How old are you?
    Yes, the failure to blow long enough to give the full samples is going to be considered a refusal.
    Yes, the failure of the FSTs will probably be enough to convict even with the refusal/bad test.

    I've seen both results challenged successfully in court but it took a good lawyer and a better argument than "the officer is lying."

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