By: Atlanta DUI Lawyer William C. Head, Copyright 2017
Unfortunately, people only inquire about advice from a DUI lawyer AFTER they are arrested for DUI in Georgia. By then, they have had to deal with a police officer determined to make a DUI arrest, who used verbal judo techniques to obtain participation in optional, voluntary field sobriety tests by NOT telling the detained person that all pre-arrest roadside evaluations are 100% OPTIONAL.
Atlanta DUI lawyer Bubba Head reminds all Georgia drivers: Remember that all you say and every move you make is being captured on video, and ALL will be used later to try to convict you. Shut up! This article walks through, in detail, the DUI GA rules for responding to a police pullover for a traffic ticket, or being stopped at a DUI checkpoint. Being prepared, and especially knowing what to do when pressured to perform field sobriety tests or answer police questions can make the difference between winning and losing.
Should I Blow into a Portable Breathalyzer, If Asked by the Police Officer?
The police usually convince the person to submit to a portable breath alcohol test early in the investigation. Georgia allows police to offer a hand-held portable breathalyzer test, while other states, like Florida abandoned using it, due to many cases involving confusion by a suspected drunk driver, who thought the roadside test satisfied the obligation to take the implied consent test.
Again, this is prior to arrest, so it is OPTIONAL. Any knowledgeable DUI lawyer in Georgia will tell you to NOT SUBMIT to that preliminary breath test. This “positive” reading alone can be enough to support a DUI arrest under Georgia law. Plus, if you are thinking, “Well, if I have had nothing to drink, then why not take it?” The minute you “pass” that portable breathalyzer, the officer will focus on you as being affected by DRUGS, and will start a DUI-drugs investigation, and perhaps request a modified Romberg balance test, which is ALSO optional and is a far less reliable test than even the non-scientific field sobriety tests.
In GA, You Can’t Call Your Lawyer Before Deciding Whether to Take the GA Intoxilyzer Test
Despite what you think, you have no right to stop the police investigation and contact a DUI attorney, before or after questions are being asked (to get you to self-incriminate). If you decline to answer police questions, then roadside tests are going to be requested. In fact, if any hint of an odor or alcohol, or drugs, or if anything seems amiss inside your car, the police officer is going to ask you to come out of the driver’s seat, and let him or her see how you exit, how you stand, and how you react to questions by a law enforcement officer.
Georgia law (Rackoff v. State) does not allow any calls during your police encounter, so you must know your legal rights. Regardless of whether your encounter with police is a DUI check point or a DUI accident. Some routine police screening questions and tests will be offered.
No calls to a drunk driving lawyer re allowed until AFTER you have totally incriminated yourself. You will not be given any Miranda rights either during this process, and likely not even after a Georgia DUI arrest. What the officer READS you, off an orange card, is the Georgia implied consent law notice that he or she carried in the shirt pocket of their uniform.
While a suspected drunken driver in the SAME situation in North Carolina CAN call a drunk driving attorney in North Carolina before taking the official breath alcohol test, Georgia appellate case law says that this right to contact DUI lawyers only comes after the official, incriminatory breathalyzer test results are obtained, or a blood draw is taken from you. By then, you are knee deep in giving up police evidence.
So, you simply don’t talk, and don’t participate in any field sobriety tests of ANY kind, or a preliminary breath test, which are all 100% optional. Only your NAME and ADDRESS is required from you, so SHUT UP. However, if you ARE arrested and cuffed, and the implied consent notice is read to you, then you SHOULD take the official Intoxilyzer 9000 test, in order to not put your ability to drive at risk.
For a GA DUI arrest, a refusal to be tested is a path to an administrative license suspension, which (under Georgia DUI laws) will be a total DUI suspension for a YEAR, for those who lose at the ALS hearing. CAUTION: Don’t miss filing your 10 day letter, which is the means (under GA DUI law) of appealing a proposed one year driver’s license suspension in GA. This requires $150 filing fee, and you MUST be able to prove delivery to GA DDS.
What happens if I Refused to Blow?
We just covered the potential one-year loss of all driving privileges in Georgia, if you lose the “refusal” hearing during the administrative license suspension phase of your case. This legal proceeding is in ADDITION to the pending criminal charges, and the same DUI attorney needs to handle BOTH the criminal and the administrative aspects of a Georgia DUI.
The first thing to consider is that you CAN refuse to be breath-tested, but GA DUI laws allow the officer to contact a Magistrate Judge and get a search warrant to have your blood drawn – by force if necessary. If an accused drunk driver refuses to take the official GA implied consent law breath test for alcohol or a blood test for drugs (after being arrested), the detained DUI suspect also risks having his or her Georgia driver’s license taken away for a year.
So, since it is usually easier to win a pretrial suppression motion under Georgia implied consent law, a top rated DUI lawyer in GA will usually prefer to fight the Georgia implied consent law notice (and its legal sufficiency and accuracy) than to try to get a Judge to rule that the search warrant for blood was flawed or defective.
After your arrest for DUI, if asked (under the Georgia implied consent law) to submit to breath alcohol testing, you should submit due to the one-year DUI license suspension that can follow a DUI test refusal. Beyond the “search warrant” issue just covered above, there are several reasons for Mr. Head’s general suggestion to submit to implied consent testing. First, no restricted license or work permit is allowed, for a DUI refusal, and over 90% of our clients tell us that they cannot be suspended for a full year. They all need a work permit, which is unavailable, after a refusal to submit is upheld at the administrative license suspension hearing.
Second, after the Birchfield case, because many more police departments in Georgia are now seeking and getting judicial warrants for blood extraction, things other than alcohol may be detected in the blood. In the last few years, many of these blood tests by search warrant have been tested at the GBI for both blood alcohol content (BAC), and for traces of marijuana from a blood drug test. Georgia is a ZERO TOLERANCE state, for purposes of DUI marijuana. That means that if ANY trace is detected, even from use two weeks ago, you will face an additional DUI-marijuana per se case.
Blood tests can lead to police charging multiple types of DUI against you. By taking a breathalyzer test on the Intoxilyzer 9000 after arrest, you get to demand and get an independent blood test at a hospital of your own choosing. this avoids a possibly having a more harmful blood test for drugs requested by the GBI, which will also reveal your BAC levels. Jurors do not usually acquit in cases where the alcohol-consuming driver also has marijuana in his or her system.
Can I Get Independent Testing After I Take the Intoxilyzer 9000 Test?
If you SUBMIT, be sure to demand your own independent test of your blood – after you have submitted. You need to designate the hospital where you want to get that blood drawn, and ask for a vial of the blood that was drawn, so that you can get independent lab testing. Those who refuse the official, Intoxilyzer breath alcohol test are not entitled to an independent test. Plus, a search warrant for a forcible blood draw may be obtained by the officer, who can get a Judge to authorize it by electronic (telephonic) warrant.
If drugs are suspected by the officer, he or she may be able to justify obtaining a blood drugs test, but your DUI attorney may use a pre-trial motion to suppress the factual basis for the blood collection. In the recent Birchfield v. North Dakota case from June 2016, the U. S. Supreme Court limited when an invasive blood collection can be requested by a police officer making a DUI-DWI arrest, by use of implied consent. Plus, Mr. Head has a current constitutional challenge pending about the current Georgia implied consent law “language” in the pre-printed card. This appeal may cause your blood test results to be completely excluded.
Let Your DUI Lawyer Try to Suppress the Breathalyzer Test, Rather Than Refuse to Be Tested
Because Mr. Head and the partners at his GA DUI law firm have had substantial success in beating the breathalyzer test in Court, we may be able to have the harmful breath test results excluded. Multiple requirements for additional testing exist, that the officer must follow. By demanding your own independent blood test, this may help us win your DUI case.
Fewer than 2% of all drivers arrested for DUI in GA fail to REQUEST and get their own independent chemical tests performed, after they have submitted to the police officer’s DUI test of breath alcohol or blood drugs testing. When analysis of an independent test is done, only ethanol content should be evaluated, if you are only charged with DUI alcohol in your case.
Because no meaningful training on “legal rights” is given to Georgia citizens in high school or college, 99% of all people pulled over for a suspected DUI in Georgia do not know what to do — or what not to do — when a police officer starts questioning a suspected DUI Georgia driver. Beating a DUI takes a skilled criminal defense lawyer, and one that is a DUI specialist. In this short article, DUI specialist William C. Head outlines how to beat a DUI if arrested for driving while intoxicated in metro Atlanta, Georgia (or any other place in the State of Georgia).
Call the law office of William C. Head, PC today and speak to one of our 24-hour lawyer specialists. 404-567-5515 or 1-888-DUI-HEAD [1-888-384-4323]. Or, e-mail DUI Specialist Bubba Head directly at firstname.lastname@example.org.