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By: William C. Head, Board Certified Georgia DUI Attorney, Named Best Atlanta DUI Lawyer 2017
On June 23, 2016, the nation’s highest court determined that a breath alcohol test is NOT invasive and is a legal search incident to a lawful arrest for driving under the influence under the Fourth Amendment. This ruling, in Birchfield v. North Dakota, clarified a good bit of contradictory and confusing prior rulings by the U.S. Supreme Court. This decision came shortly after Missouri v. McNeely in 2013, which blocked the state of Missouri from getting blood involuntarily, without a judicial warrant.
Under this new ruling by the Supreme Court, a citizen under arrest for DWI or DUI alcohol can be requested to submit to a state breath alcohol (breathalyzer) test to check BAC amounts or risk harsh driver’s license consequences. Plus, in about a dozen states, state DUI laws make refusing to submit to breath tests a CRIME and call for a person with a DUI refusal (after being convicted) to be put in jail or prison and fined for the “refusal” to submit, or BOTH.
The 2016 decision in Birchfield approved that type of law for breath alcohol testing but distinguished blood collection as being a more invasive test. Two earlier high court decisions, Schmerber and Breithaupt, seemed to put the legal emphasis on the metabolization of alcohol and how it dissipates from the driver’s body. The new Supreme Court ruling does not bode well for people who drink. A person cannot get rid of alcohol breath for a long time after alcohol is consumed.
The detectable odor of ethanol (drinking alcohol) or its metabolites (burn-off products) like acetaldehyde, stays on the drinker’s breath for as much as 12 plus hours. Many people get arrested after waiting an hour or more following their last drink because they lack training and education about alcohol metabolism and how much time is required until your body is alcohol-free.
Some people are arrested the next morning on the way to work. The smell of alcohol as circumstantial evidence of recent consumption can lead to a drunk driving arrest on little evidence of impairment in many alcohol-based DUI cases. This is true even if the driver declined to blow into the alcohol breath tester a law enforcement officer seeks to use on the roadside.
Any alcoholic beverage such as Scotch whiskey, beer, or grain alcohol, can make a person’s breath smell like alcohol for many hours. A scientific explanation for the lingering “alcohol on the breath” problem is simple. First, even though alcohol can be consumed quickly, it cannot be “burned off” (eliminated) fast. The rate of burn-off is about 0.015 grams per hour.
So, if a person drank enough to reach a 0.18 grams breath alcohol content, the alcohol would require about 12 hours to metabolize. Even then, the smell of alcohol breath byproducts may last another couple of hours.
No magic exists for getting rid of the alcohol from your breath. Enough time must pass for the liver to process all the poison in your system (yes, alcohol is a poison) and convert the poison into less toxic byproducts. One of these byproducts, acetaldehyde, smells close to alcohol breath and a police officer may mistakenly accuse you of being intoxicated from alcohol when your breath alcohol content has reached zero.
Many myths exist about how to hide the smell of breath alcohol. Since 60% of all Americans drink regularly and annual DUI arrests in the USA averaged over 1.6 million from 1991 to 2006, it is apparent that the “tricks” do not work very well. DUI-DWI arrests have dropped in recent years, due to the emergence of the cell phone, app-based “ride-sharing” services that are on the verge of making traditional taxicab service a historical footnote.
The steps that have a real chance to succeed are:
If you have properly calculated your BAC levels by using a reliable BAC chart, you should be fine to “blow.” As stated in the opening part of this article, NOT saying “yes” to the state breath alcohol test can cost you the ability to drive at a minimum or possibly put you behind bars, OR BOTH. These three rules will help you have your best chance not getting convicted of DWI-DUI:
People can be accused of drunk driving in situations when they have not committed any traffic violation. In every state, a driver who is asleep in a vehicle on a highway or shoulder of the road that is part of the right-of-way will be investigated by a law enforcement officer. Police have the right to assure public safety as part of “community caretaking.” Asking if a driver is all right is part of that job.
In some states, like Georgia, police can arrest a suspected drunken driver for DUI even if he or she is on private property. Other states are not quite willing to give police such authority, but parking lots of restaurants and other businesses are usually “fair game” for patrolling police officers.
Another time police MAY encounter a suspected DUI driver is at a DUI checkpoint. Police roadblocks are legal in about three-fourths of all states, and the District of Columbia. At a roadblock, an officer will ask you to roll down your window to show your driver’s license, insurance, and possibly your registration. In states that approve DUI checkpoints tonight, this can lead to an officer claiming you are DUI.
These five tips may assist you to assert all of your legal rights to minimize being convicted of DUI:
Don’t settle for just any DUI attorneys. Speak to Bubba Head, the criminal defense lawyer whom those in law enforcement and people who work within the court system routinely call for legal advice when their friends and family members are facing a DUI offense.
The veteran criminal defense attorney Atlanta and his two law partners Larry Kohn and Cory Yager (who have been with Mr. Head since graduating from Law School), have handled well over 10,000 Georgia DUI cases in the last 25 years of legal service. For a FREE analysis of your criminal charges, please complete our online case evaluation form.
Call today (404) 567-5515 and talk to DUI book author and highest lawyer ratings Atlanta DUI attorney Bubba Head or his Super Lawyer partners at the DUI law firm today and get honest answers to all your questions. Tell us everything that happened and everything you remember about your DUI arrest. The sooner you call us, the better chance we have to win your case.
Remember, you only have 30 DAYS to file a license suspension appeal or apply for an ignition interlock device or your driver’s license will be suspended for up to one year! Talk to Bubba Head, Larry Kohn, or Cory Yager now during your free lawyer consultation. Our criminal lawyers are available 24 hours a day, on weekends, and all major holidays. Call 404-567-5515 now. Don’t just guess at law practice skills and select a cheap DUI lawyer from the law firms with no litigation experience. You would not use such poor judgment in hiring a surgeon.
Call 43-year veteran Sandy Springs GA DUI attorney Bubba Head at his Sandy Springs law office and get honest answers to all your questions during your free consultation. Tell our lawyers in Atlanta everything that happened and everything you remember about your DUI arrest. The sooner you call us, the better chance of success for our criminal justice attorneys in the courtroom. Our best goal is to win your DUI case or get your DUI charges reduced to reckless driving or dismissed.
Remember, you only have 30 DAYS to file a license suspension appeal or apply for an ignition interlock device or your driver’s license will be administratively suspended for one year! Talk to Bubba Head, Larry Kohn, or Cory Yager now at 404-567-5515. Our law firm’s DUI attorneys are available 24 hours a day, on weekends, and all major holidays.
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Special credentials: Board Certified in DUI Defense by the American Bar Association, Martindale-Hubbell 5.0 ratings, and “av preeminent” highest possible rating for ethics and skill.
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