By: William C. Head, Criminal Defense Attorney Atlanta GA and ABA Board-Certified DUI Attorney
On November 2, 2016, William Head was successful in having the Georgia implied consent law declared unconstitutional, as applied to breath alcohol testing. This Cobb County State Court ruling (at a pre-trial motion hearing) was made under the self-incrimination provisions of the Georgia Constitution (¶ XVI), that (both standing alone and when combined with the related constitutional protections with other parts of the Georgia Constitution and related, similar protections under the United States Constitution), provide higher protections than under the 5th Amendment or 4th Amendment, under federal law.
This legal attack, for drivers already arrested for DUI-alcohol less safe in Georgia, and are read the current, defective Georgia implied consent notice, and who later submit to BREATH ALCOHOL TESTING may have an “as applied” constitutional challenge that will eliminate the breath alcohol tests taken by police. Georgia’s law calls for a driver to be afforded no ability to call a DUI lawyer, or anyone else, once the DUI less safe (alcohol) arrest has been effected. To ask a person who is in police custody, from this existing less safe DUI arrest, to then is required by police perform acts to supply other incriminating evidence violates the Georgia Constitution.
The additional State Constitutional protections afforded Defendant (beyond those afforded under the United States Constitution in the Fourth Amendment, Fifth Amendment and Sixth Amendment, as applied to state action under the Fourteenth Amendment), are the source of this successful ruling declaring the GA implied consent law to be unconstitutional. In doing so, breath alcohol test results from an Intoxilyzer must be excluded. According to the holding in Bell v. Burson, 402 U.S. 535 (1971), due process of law mandates that “[s]uspension of issued licenses thus involves state action that adjudicates important interests of the licensees. In such cases the licenses are not to be taken away without that procedural due process required by the Fourteenth Amendment. Sniadach v. Family Finance Corp., 395 U.S. 337, 89 S.Ct. 1820, 23 L.Ed.2d 349 (1969); Goldberg v. Kelly, 397 U.S. 254, 90 S.Ct. 1011, 25 L.Ed.2d 287 (1970). “
For Georgia DUI arrests, in a typical DUI-alcohol, post-arrest breath testing case (i.e., not involving “exigent circumstances” on an Intoxilyzer breath alcohol analysis device, where forensic evidential breath alcohol results were obtained through merely giving an implied consent notice under any advisement shown in OCGA 40-5-67.1(b), and which results were not obtained by a court order or a search warrant, this challenge can be successfully mounted. Where successful, the Intoxilyzer breath alcohol test results yielded by Defendant pursuant to the coercion contained within the implied consent warning must be excluded from the State’s case-in-chief.
The current implied consent notice being used in Georgia is incomplete, deceptive, misleading, confusing and is factually deficient, and utterly fails to fully and fairly apprise Defendant of required information called for by all parts of the controlling statute, O.C.G.A. § 40-5-67.1.
After being arrested for DUI in Georgia, the first thing to do it identify an expert on Georgia DUI law through top attorney ratings. Look at who is BEHIND the law firm, review each of the trial lawyers’ credentials, and check out the criminal defense attorney who leads the law office. Every experienced DUI lawyer in the law firm must have full command of DUI laws and possess training in all aspects of successfully challenging the driving under the influence criminal case.
This successful defense record must include suppressing breath alcohol tests, and knowing every prior appellate decision on the Georgia implied consent law. An increasing number of drugged driving cases require that our criminal defense lawyers know how to challenge a GBI blood alcohol or drugs test. Being an INSTRUCTOR in the three NHTSA standardized field sobriety tests (SFST) is also necessary.
The best DUI attorneys in Atlanta, Georgia will offer you a FREE consultation, explain how their criminal attorneys search for a successful defense in your case, and aggressively represent clients to the maximum extent the law allows. Limit your search to DUI lawyers who have legitimate lawyer ratings and a history of proven results on knowing how to beat a DUI. If we are the criminal defense attorneys for you, ask us about our attorney payment plans.
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