SHOULD YOU TAKE THE STATE’S ADMINISTERED TEST IN DUI INVESTIGATIONS?

  
I will first point out that there is a very simple rule that if followed can avoid 100% of DUI alcohol related arrests. If you drink even 1 beer and decide that you need to go somewhere, either get someone to drive or stay where you are. Trying to calibrate the way that you feel after drinking and deciding that you are “ok” has led to thousands of DUI arrests in Georgia alone.

However, this rule is not always followed and one of the most common questions I am asked by my clients and others in the community is whether they should submit to a test requested by a law enforcement officer of their breath, urine, or blood if they are stopped and accused of DUI.

Let me first point out that the rest of this column consists of my legal opinion. You should always seek the advice of an attorney who you trust when confronted with legal questions on a case by case basis. Also, because of space constraints, this is a very generalized column. Each DUI case is very unique with countless circumstances that can affect my opinion.

With that understanding, when a person is arrested for DUI, the police officer will almost always read what is called the Implied Consent Notice to you. This is a bright orange card that outlines your rights concerning the taking of a test of you blood, breath, or urine. It is a voluntary test, but a refusal can have negative consequences. The main consequence is that you could lose your privilege to drive for 12 months.

Situations when the test probably should be taken include:

1. When the driver is over the age of 21 and is arrested for a first DUI in a five-year period. If the driver is eventually convicted of DUI, he may be eligible for a limited permit to drive. There is even a stronger argument for taking the test when the driver has not had much to drink. A low or borderline blood alcohol content (BAC) can be helpful in the defense of a DUI case. The threshold limit for a per se DUI prosecution is .08.

Situations when the test probably should not be taken include:

1. When the driver who is arrested has been convicted for 1 or more DUIs within the past 5 years. The driver will not be eligible for a limited permit anyway and the state’s administered test can add very damaging evidence to the case.

2. When the driver who is arrested for DUI is involved in a case where aggravating circumstances exist such as serious injury or death. The driver does not need to worry about license suspensions in these scenarios. A lengthy stay in the state penitentiary along with the lifelong guilt and remorse of injuring or killing someone is the main concern. It is not a good idea to take any tests offered by law enforcement under these circumstances. It is important to note, however, that if the facts justify it, officers can and often do seek and obtain a search warrant for the driver’s blood when serious injuries or death occurs.

3. When the driver is under the age of 21. Anyone who is under 21 only has to register .02 to have an unlawful blood alcohol level. This is extremely low. Additionally, the under 21 driver is not eligible for a limited permit anyway if he registers over 0.08.

4. When the driver is highly intoxicated and he knows it. In any scenario, a very high BAC can be an aggravating circumstance on its own. Judges are much more comfortable putting people in jail when they are “way over the limit.”

DUI cases are almost always dealing with hindsight analysis and what should and should not have been done by the defendant and the officers involved. If you find yourself charged with DUI in Georgia, make sure that your attorney has all of the correct facts from beginning to end.