By: William C. Head, named as the “Best DUI Lawyer in Atlanta”
Every GA DUI arrest involves either a DUI test under Georgia implied consent law, after the person is taken into custody, or a DUI refusal. Severe driver license consequences typically follow a decision to refuse DUI test compliance. This page focuses on how to beat a DUI refusal.
What is at stake in Georgia DUI cases involving a DUI refusal is the driver’s ability to drive in Georgia for a full year, if a DUI refusal violation is upheld at the administrative license suspension hearing. No limited permit to drive in GA is available (unless the person opts to install a costly ignition interlock device for a full 12 months, under a new implied consent law in GA for refusals, OCGA 40-6-64.1).
The cheap DUI lawyers in GA simply convince their client to agree to plead guilty to the criminal charge of driving under the influence, and get the officer to withdraw the ALS (administrative license suspension) early in the DUI case. The best DUI lawyer in Georgia looks at these refusal cases differently, with an eye toward keeping a DUI conviction off the client’s criminal record, which remains there for LIFE.
Litigation in the state of New Jersey challenging the breathalyzer “source code” proved that some elderly people, or persons with lung disease (i.e., COPD, lung cancer, emphysema) and smaller-stature women sometimes cannot deliver an adequate amount of deep lung air 1.1 liters or more) over the sustained time period, to “satisfy” the breath testing machine criteria for pressure, duration and volume of air.
In addition, scientific studies conducted breath alcohol testing experts led by Dr. Michael Hlastala, a former University of Washington Medical School Professor, showed wide variations in different people’s lung function and volume. The deposit and removal of alcohol-laced breath in a person’s mucosa lining can create variations in the reliability of breath alcohol test results.
Yet, some police officers are quick to sign an implied consent refusal affidavit, and not bother getting a warrant for a blood draw. A top DUI lawyer will know how to address this legal issue, but your DUI lawyer may need for you to be examined by a medical expert, and pay for such expert testimony and medical records, if you have a compromised vital capacity of your lungs.
Can a Police Officer Prevent the Intoxilyzer 9000 Breath Alcohol Test?
Police officers are trained and approved by the GBI on how to instruct and test a person arrested for DUI, in the Intoxilyzer 9000. Any person who feigns (fakes) compliance with breath alcohol testing, or refuses to provide the two, successive breath alcohol test exhalations can expect to be written up as a DUI refusal.
Since most breathalyzer rooms at police stations and jails have no surveillance cameras to capture the interaction between the person under arrest and the law enforcement officer, many cases may require a pretrial motion hearing to establish (through testimony) exactly what happened.
If no alcohol breath test is successfully provided on the Intoxilyzer 9000, a DUI refusal DDS 1205 Form will be completed, and the detained individual may soon find that the arresting officer has executed an electronic search warrant affidavit over the phone, and that a magistrate judge has signed a search warrant for blood to be collected, in light of the person’s DUI refusal.
Since an Intoxilyzer 9000 measures and reports the exhaled breath volume, this “evidence” may be used to convince a judge that the test subject faked breath testing compliance, in an effort to not comply with GA implied consent law, and not reveal the person’s BAC level.
A GA DUI arrestee can face a full twelve-month hard suspension of his or her Georgia driver’s license, plus possibly have to face the forcible blood test results, when the case is later heard as a criminal trial. Out of state licensees will have no right to drive for the full 12 months, in Georgia, even under Georgia’s new law (effective July 1, 2017), under OCGA 40-5-64.1, for installation of ignition interlock.
In addition, this DUI refusal can trigger a similar suspension or revocation in their home state, whether or not the Georgia DUI criminal case is also lost.
These punitive DUI penalties and driver license suspension consequences are why calling our DUI law firm in Georgia today is a smart move. 404-567-5515. The lawyer consultation is FREE, so why not call now? Bubba Head, Larry Kohn or Cory Yager can help you better understand all aspects of a DUI refusal in Georgia.