Can I Refuse to Take a Breathalyzer Test in Georgia?

If you are suspected of drunk driving in Georgia, you might question whether you have a right to refuse to take a breathalyzer test. You do, but refusing comes at a cost. So, it pays to know your rights when it comes to facing a Georgia DUI test.

There are things you can and can’t do to fight the driving under the influence (DUI) charges against you. An experienced DUI defense attorney can evaluate the tests given to you during a traffic stop. He can also help you build a strong defense. Contact The George McCranie Law Firm today to find out how we can help you with a DUI.

What Is Georgia’s Implied Consent Law?

When you drive on Georgia roads, you have consented to take a breathalyzer test or any other chemical test that could indicate whether you have alcohol or drugs in you. This is called “implied consent” under State law. So, if you are lawfully arrested for DUI or involved in a serious accident in Georgia, you can’t refuse to take a breathalyzer test (or other tests of body chemicals such as blood, urine, or saliva) unless you accept the consequences.

So, what happens if you refuse to take a breathalyzer test? You lose the right to drive. Violating the State’s implied consent law results in an automatic one-year suspension of your driver’s license with no possibility of obtaining a limited driving permit. Your refusal could also be used against you at your DUI trial. The prosecution may use this to show that you were uncooperative and had something to hide.

Another limit on your rights is that you do not have the right to consult an attorney before deciding to take the breathalyzer test. This makes it even more important that you know your rights and talk to an attorney immediately afterwards.

Your Right to Refuse Field Sobriety Tests

You may have little choice but to agree to take the arresting officer’s breathalyzer test. However, you are not obligated to agree to all requests the officer makes. The State’s implied consent law does not apply to field sobriety tests. So, you have the right to refuse any horizontal gaze nystagmus, one-leg stand, or walk-and-turn test that the law enforcement officer asks you to take.

Your Rights When Asked to Take a Breath Test

Breathalyzer tests have to be performed as required by law. This means that an arresting officer can only use designated procedures. For example, the officer must provide you the State’s “implied consent notice” when you are suspected of driving under the influence.

By reciting this notice, the officer is informing you that, under State law:

  • you are required to submit to a breathalyzer test,
  • there are penalties if you refuse, and
  • you have the right to request an independent test.

The officer then must ask you whether you will take the breathalyzer test. If an officer does not give you the implied consent notice, the test results aren’t allowed to become evidence in your court case and your driver’s license can’t be suspended.

When law enforcement asks you to take a breathalyzer test, you also have the right to request an independent test. The independent test will be at your own expense and performed by qualified personnel you choose. It does not need to test your breath. So you could choose an independent test of your blood at a hospital from qualified medical professionals. You won’t be able to request an independent test, though, if you refuse to take the officer’s breathalyzer test.

If the officer doesn’t adequately accommodate your request for an independent test, your attorney can challenge the results of the officer’s breathalyzer test. The court will not allow it to be used as evidence against you in your DUI case if your request for an independent test was reasonable.

Contact a DUI Attorney If You’re Facing DUI Charges

Whether you refuse to take a breathalyzer test or not, it is in your best interest to get in touch with a DUI attorney as soon as possible after you’ve been arrested. DUI law is complex. You will need an experienced attorney that knows it well enough to support you and help defend your rights. Contact The George McCranie Law Firm today.

DUI Test Breathalzyer Test Field Sobriety Test DUI Lawyer in GA

 

Will You Be Convicted of DUI for Failing Field Sobriety Tests?

If you were given field sobriety tests and later charged with a DUI, an experienced Valdosta defense attorney can help you avoid the harshest criminal penalties. When you’re pulled over and an officer suspects you may be intoxicated, you may be given a series of Standardized Field Sobriety Tests (SFSTs). The approved SFSTs in GA are the Horizontal Gaze Nystagmus (HGN) test, “Walk and Turn” test, and the One Leg Stand test.

These SFSTs were created by the National Highway Traffic Safety Administration (NHTSA) to help an officer determine when a person is impaired. However, they are flawed and often do not provide accurate results. An experienced DUI defense attorney can evaluate the field sobriety tests given to you during a traffic stop and help you build a strong defense. Call The George McCranie Law Firm today at (912) 384-2889 to find out how we can help you with a DUI.

Horizontal Gaze Nystagmus Test

The only “scientific” SFST is the horizontal gaze nystagmus (HGN) test. The HGN test looks for involuntary eye movement as the eye moves side to side. An officer may conduct HGN field sobriety tests by asking you to follow a moving object, such as a pen or small light, as it moves across your vision.

During the HGN test, the officer may look for the following indicators of impairment:

  • Eye twitching or jerking
  • Inability to move the eye smoothly from side to side

An experienced DUI defense attorney knows how to point out all the flaws in the HGN test!

Walk and Turn Test

Another SFST is the Walk and Turn test. This test attempts to evaluate your ability to walk a straight line turn and return while dividing your attention. The Walk and Turn test is performed by asking you to take nine steps in a heel-to-toe fashion, then turn around and return to your starting point in the same manner.

During the walk and turn test, the officer may look for the following indicators of impairment:

  • Inability to walk heel-to-toe
  • Stepping or stumbling outside of a straight line
  • Taking the wrong number of steps
  • Using arms or legs to balance while walking

Even when conducted correctly this test is only 79% accurate, according to the NHTSA. An experienced DUI defense attorney can gather evidence to show that the Walk and Turn test was flawed.

One Leg Stand Test

An officer may also use the One Leg Stand test along with the other field sobriety tests. This test evaluates your ability to complete a balancing task while multitasking or dividing your attention. The officer should ask you to balance on one foot for 30 seconds while counting out loud by 1000’s.

During the One Leg Stand test, the officer may look for the following indicators of impairment:

  • Swaying or inability to remain still while balancing
  • Hopping to maintain balance
  • Using arms to maintain balance

The One Leg Stand test is not very accurate. So a skilled DUI defense attorney can find problems with the test and present those problems to a judge or jury.

An Experienced DUI Defense Attorney Can Help If You “Failed” Field Sobriety Tests

When determining intoxication, most police officers utilize the SFSTs. However, the NHTSA tests are flawed. If you have certain medical conditions, are taking specific legal prescription medications or over the counter drugs, or are tired, your results may indicate that you were under the influence when, in fact, you were not. An experienced DUI defense attorney can support you and help defend your rights. We will your best defense against the government!

What Does Super Villain Hannibal Lecter and a Blood or Urine Test in Georgia Have in Common?

Before 2006 Georgia law protected a driver’s right to “refuse” to submit to the states chemical tests in a DUI investigation. A driver’s refusal to submit to the state test(s) was protected under O.C.G.A. § 40-5-67.1(d). The law at that time stated that “no test shall be given” when a driver refuses to take the state’s chemical test after the officer reads the implied consent notice. If a driver refused to take the state test the consequences were – the possible admission of the refusal at the criminal trial and a suspension of their Georgia driver’s license or their privilege to drive in the State of Georgia if they were licensed in another state. The 2005 version of the law protected a driver’s right to prevent law enforcement from ordering a forced chemical test.

Then in 2006 the Georgia legislature amended O.C.G.A. § 40-5-67.1(d) by adding subsection (d.1). The new law states “nothing in this code section shall be deemed to preclude the acquisition or admission of evidence of a violation of O.C.G.A. § 40-6-391 if obtained by voluntary consent or a search warrant as authorized by the Constitution or laws of this state or the United States.” Now an officer can get a Search Warrant and perform a forced blood or urine draw. The Georgia legislature by amending the law in this way has effectively destroyed the driver’s right to be secure in their own body!

I think a good question to ask is – so what is a forced blood or urine draw exactly? It usually starts with several officers forcibly holding down a driver on a medical gurney or restraint chair. The best example of a restraint chair is the one used in Silence of the Lambs to restrain the villain Hannibal Lecter. Both of the driver’s shoulders, arms and legs are strapped down to prevent any movement. A driver’s fear of needles, claustrophobia, medical condition(s), gender and good standing in the community isn’t taken into consideration at all. Remember, this is a FORCED procedure. The driver has no choice or say in the matter. That is why several officers are used to forcibly strap down a driver and any protest is simply disregarded. The specific procedures for the use of the restraints on a driver and the taking of a forced blood or urine sample are defined by each individual law enforcement department or agency.

To get an idea of what a forced blood draw looks like and the number of officers that are used to hold down a driver take a look at this link to a Youtube.com video from Gwinnett County, Georgia.  These forced blood draws were taken in the metro Atlanta area. But don’t be fooled into thinking this only happens in Georgia’s largest cities. I am personally aware of a driver being strapped down in a restraint chair in extreme South Georgia and having their blood forcibly taken.

How did we get here? What happened to our right to refuse the states chemical tests?

To be secure in our own body? Back in 2005 the Georgia Supreme Court took up this topic in State of Georgia v Collier.  Mr. Collier was involved in a serious car collision and refused to submit to the states chemical tests of his blood and urine. Mr. Collier later consented to the blood and urine tests after the police threatened to get a Search Warrant and use a catheter to get the samples. The police used these threats even though the Georgia law clearly stated that if a driver “refused”, “no test shall be given”. So let me clarify exactly what the police threatened to do to Mr. Collier if he didn’t consent to the urine test – they would hold him down, use restraint straps to bind down his shoulders, arms, legs & feet, remove his clothing and undergarments and force a catheter into and up his penis/urethra in order to collect a urine sample. Fortunately, based on the law at the time (2005) the Supreme Court of Georgia upheld the law and protected the driver’s right to refuse in Collier.

But with the amendment of the law by the Georgia legislature in 2006 the driver’s “right of refusal” is gone! Oh sure, you can still refuse, but if you make the officer angry they can legally physically violate and assault you, suspend your driver’s license for 12 months, then use your refusal against you in court. So if you, your friend, or family member is stopped by an officer that is having a bad day, it is up to the officer whether or not to get a Search Warrant and take a forced sample. The decision to get a search warrant sounds very subjective and depends on the whim of the arresting officer. And did I mention that the Georgia Implied Consent Notice does NOT inform a driver that the officer can still get a Search Warrant and take your bodily fluids even though you refused!

How will the people of Georgia react to this change in the law and the change in tactics of law enforcement? Will the people allow themselves, their wives, husbands, daughters, sons, moms & dads to be subjected to forced blood draws and forced catheritizations? Will juries refuse to convict drivers that are forced to have their bodily fluids taken? Will average people be so incensed by these brutal police tactics that they demand their legislators change the law and protect their rights? – Only time will tell.

George McCranie, IV

DUI/Criminal Defense Attorney and Author

Call McCranie Law Firm at 912-383-7581 (Douglas) or 229-232-4114 (Valdosta) to speak with an experienced Criminal Defense attorney. Visit our website at mccranielawfirm.com or email George directly at georgemccranie@mccranielawfirm.com. You can also follow us on Facebook, LinkedIn, YouTube and Twitter for informational videos, blogs and answers to your questions.

I refused to take a Breathalyzer test after being arrested

Q:

DS 1205 form was filled out incorrectly by arresting officer… Does this help me? I refused to take a Breathalyzer test after being arrested, but I did submit to the field test. The arrestinog officer checked the first two spaces on the DS-1205, indicationg that I had tested positive about 0.08. Considering that the form clearly states “MARK ONE ONLY” and on his sworm report, he is indicating that I tested above 0.08, which cannot be proven becasue I refused to take a Breathalyzer, will this help me? He also did not sign the temporary license section at the bottom of the page, even though my license/ pribilege was not suspended, cancled, or revoked at the time of my arrest. This has left me with nothing.

A:

First: You MUST file a request for a hearing within 10 business days and include the $150.00 fee or your Drivers License WILL BE SUSPENDED. it does not matter that there are technical and possible factual/legal issues that could be presented in your defense if you don’t request a hearing!

Second: I would higly recommend that you retain an Experienced DUI Attorney to represent you in the Administrative License Suspension (ALS) hearing ASAP! Trying to defend yourself at this hearing is NOT A GOOD IDEA!

Third: Do your research and find a DUI Defense Attorney that you feel comfortable using. Talk with the Attorney and ask about qualifications experience. Directly question his/her knowledge on the ALS procedure and any available defense you may have at eh ALS hearing or at a Trail. Hire the Attorney that you feel most comfortable with defending you in court. Remember, your Attorney is your voice in Court, your Defender and should be both qualified and experienced in defending ALS/DUI cases like yours. I hope this has been helpful information to you. Good Luck!