There Are Many Potential Defenses To Your DUI In Georgia:
If you have been arrested for DUI in Georgia, there are many potential DUI Defenses available to you. Even in cases where you have tested above .08, you can still win your DUI case. It is also possible that by showing that mistakes were made in your case, your Georgia DUI Lawyer will be able to convince the prosecutor to reduce your case to reckless driving. A reduction to reckless driving will not happen because you are a nice person or because it's a person's first DUI in Georgia. It can only happen when your Georgia DUI Attorney presents defenses in your case.
Our office is dedicated to DUI Defense in Georgia. We exclusively practice DUI Law and handle cases throughout the State. Our reviews can be found on AVVO, where you will find that we are the top-rated most reviewed defense lawyers in the State of Georgia. We are available to help you 24 hours a day, 7 days a week. This includes weekends, nights, and holidays because our philosophy is that you should not have to wait for Monday morning for help.
Remember, you only have 10 days from the date of your arrest to have your Georgia DUI Lawyer file for an administrative license hearing. Otherwise, your license or privilege to drive in Georgia will be suspended. Contact us now to get your defense started. Also come back and read about Georgia DUI Information on the rest of our site. It's updated daily to provide our readers with 24 hour a day information Georgia DUI cases.
Below Are 50 Defenses To Your Georgia DUI Case:
1. Challenging the Traffic Stop
Most Georgia DUI investigations and arrests begin with a routine traffic stop. In some cases, a successful defense to the traffic violation itself can result in the collapse of the probable cause supporting the stop of your vehicle and a successful defense of the DUI charge. Without probable cause, the police cannot prosecute your case.
2. Challenging the Traffic Stop: Failure to Maintain Lane
Failure to Maintain Lane is a common offense associated with DUI arrests in Georgia. This can be as little as hitting the fog line with your front or back tire or actually weaving across lanes of traffic. Many times, other distractions such as changing the radio station, taking a phone call, or talking with your passenger can cause you to swerve which are not indicative of impairment by alcohol or drugs. Some challenges have even been successful when it can be shown that you did not swerve until the officer moved behind you in your lane. Another defense is that you are allowed to change your lane as long as you first ascertain it was save to do so. As a result, weaving itself is not illegal.
3. Challenging the Traffic Stop: Improper Lane Change
There are unique challenges to a charge of Improper Lane Change. An officer typically cites this offense when you fail to use a turn signal when changing lanes, but Georgia's statute does not require the use of a signal unless another vehicle is approaching from the rear or from the front. Most DUI arrests occur very late at night when there is very little traffic and few other cars on the road, and so a turn signal may not have been required when you were stopped for the offense.
4. Challenging the Traffic Stop: Expanding the Scope of the Stop
In Georgia, if an officer continues to detain you after concluding the traffic stop and interrogates you or seeks consent to search you or your vehicle without reasonable suspicion of any wrongdoing, the officer has illegally exceeded the scope of the original traffic stop investigation. As a result, anything found in a subsequent investigation or search should be suppressed and cannot be used as evidence against you in a DUI or drug case. The scope of the stop is one of the best challenges to your Georgia DUI case.
5. Challenging Reasonable Suspicion to Stop
A brief investigative stop of a vehicle by a police officer is justified only when there is some reasonable, articulable suspicion that the driver is engaged in criminal activity, including driving under the influence of alcohol or drugs. Weaving within your lane, driving too slowly, erratic braking, using turn signals without turning, and making a wide turn have all been considered reasonable suspicion to stop. In Georgia, this can be challenged, though, when the officer's basis for stopping your vehicle is unreasonable and his decision is based on a mere “hunch”. If the basis for the stop is deemed pretextual, any subsequent investigation or arrest is illegal.
6. Challenging the Suspicion to Stop: High Crime Area
Many stops stem from being in the wrong place at the wrong time. There are many areas around Georgia that are considered “high crime” areas with known drug and prostitution activity. Driving in one of these areas is not a sufficient basis for a stop without some other evidence that you were engaged in criminal activity. Even if police observe what they believe to be consistent with a general pattern of such activity, like picking up a woman on the side of the road and driving off, this is an insufficient basis to initiate a stop of your vehicle.
7. Challenging Suspicion to Stop: Anonymous Tips
In Georgia, there are circumstances that allow an officer to stop your vehicle without actually observing a traffic violation or suspicious driving behavior. This is usually a tip from a 911 call from another driver that witnessed erratic driving by the person suspected of DUI. An officer cannot stop your vehicle based on an anonymous tip alone, however, and the tip must be corroborated by to support a stop. Challenging the reliability of the tip may be a successful defense to the stop if the tip is not sufficiently detailed.
8. Challenging Suspicion to Stop: Concerned Citizen Reports
A concerned citizen's report is treated very similarly to an anonymous tip. A concerned citizen, however, is more reliable in that the citizen's identity is typically known. The officer still must corroborate the information provided by the concerned citizen, though, and many times the details provided are not enough to sufficiently identify you as the driver the citizen was reporting. Without a proper identification that you were the driver, the police cannot stop the vehicle. Identification includes the make and model of the vehicle, the license plate information, the color of the car, and a description of the occupants.
9. Challenging Suspicion to Stop: Parked Vehicles
If you are in a parked vehicle, the standard for whether an officer is authorized to approach and question you is different than if you were driving at the time of the police encounter. A law enforcement officer is authorized to approach a parked vehicle in Georgia, but must observe something more to warrant further investigation and ask you to exit your vehicle. If nothing gave the officer reason to believe you had been drinking or were less safe to drive while you were inside your vehicle, he is not permitted to ask you to step out of your vehicle or ask that you perform any field sobriety evaluations.
10. Challenging the Road Block
In Georgia, law enforcement officers running roadblocks are required to follow certain protocol. The decision to implement the roadblock and procedures for a roadblock must be made by supervisory personnel, rather than officers in the field. There must be predetermined procedures in place to operate the roadblock, and it must have a legitimate purpose. All passing vehicles must be stopped, meaning the officers do not have discretion to stop certain vehicles and not others. The delay to motorist must be minimal, and the roadblock itself must be well identified as a police checkpoint. Any prolonged detention of a vehicle must be based upon specific, articulable facts observed by the officer. If proper protocol was not followed in initiating and executing the roadblock, the entire stop is illegal. That means your case will be dismissed if the Georgia Police do not handle the roadblock in proper manner. This is a Constitutional defense to your Georgia DUI Case. Both the United States Constitution and the Georgia Constitution are relevant in defending a roadblock DUI in Georgia.
11. Challenging Suspicion to Stop: Avoiding a Roadblock
Many drivers are pulled over because an officer believed you were attempting to avoid a nearby roadblock. The officer may have noticed you pull over to the side of the road a short distance before the roadblock or conduct a U-turn to drive away from the roadblock. If your driving behavior was sufficiently suspicious to give the officer an articulable suspicion that you were eluding the roadblock, the stop may be valid. However, you are allowed to take legal actions to avoid a roadblock, and police cannot stop you for doing so if you did not commit any other traffic offenses.
12. Challenging Evidence that You Were Driving
In some cases, the officer may not have actually seen you drive or have any knowledge of when you may have actually been driving. In Georgia, the prosecutor will have to prove that you had been in actual, physical control of a moving vehicle while under the influence of alcohol or drugs in any DUI case. This may be difficult if the officer first encounters you on the side of the road with a flat tire with no knowledge of how long you had been there, or sleeping in a parked vehicle in a lot. Driving can be proved by circumstantial evidence, but it still must be proved beyond a reasonable doubt.
13. Challenging Probable Cause to Arrest
In Georgia, police officers must have “probable cause” to arrest for DUI which means that they must have a reasonable belief that you were a less safe driver due to impairment by alcohol or drugs. Probable cause must be supported by the officer's observations and interaction with you. It is not enough that the officer believes that you had been drinking and driving; the officer must have a reasonable belief that you were actually impaired and less safe to drive because you had been drinking or using drugs. Arguing that the officer's observations did not show impairment is one of the best defenses to DUI in Georgia. Arguing that you were not actually impaired or a less-safe driver can also be a successful challenge a DUI charge.
14. Challenging Probable Cause to Arrest: Stop for Non-Moving Violation
If you were pulled over for expired registration, no tag light, or another non-moving violation, it may be difficult for the State to show that you were less safe to drive without something more. If you do not exhibit any less-safe driving behavior can be a strong argument that the officer's decision to arrest for DUI was not supported by probable cause. However, the officer does not need to see less safe driving to make an arrest. He can arrest you for DUI if there is credible evidence that your ability to drive is impaired, even when actual driving is not observed.
15. Challenging Probable Cause to Arrest: Accident Issues
If you have just been in a car accident, you are likely to be unsteady on your feet, have slurred speech, appear confused, and lack coherent thought. Additionally, if the airbags deployed you would also likely have bloodshot, watery eyes. These are also observations the officer is likely to say supported his belief that you were under the influence of either alcohol or drugs at the time of the accident. By showing that these manifestations were just as likely to have been caused by the accident itself, you may be able to successfully challenge the reliability of the clues that formed the officer's probable cause to arrest for DUI. Also if you go to trial on your DUI case, this argument can put reasonable doubt into the minds of a jury.
16. Challenging the Field Sobriety Tests
In many DUI investigations, the strongest evidence used to support the officer's belief that you were less safe to drive is your performance on field sobriety tests. Never assume the officer actually administered the field sobriety tests correctly in your case. If the field sobriety tests are successfully challenged, the judge may rule that your performance on the tests is inadmissible and cannot be used as evidence against you at trial. As a result, the prosecution's case may be significantly weakened and can lead to a favorable plea negotiation or dismissal.
17. Challenging the Field Sobriety Tests: Officer Training
Most Georgia police officers are trained to administer field sobriety evaluations by the National Highway Traffic Safety Administration (NHTSA). NHTSA provides training in a standardized manner to enhance the credibility and reliability of the tests. All Georgia police officers have some training in field sobriety testing when then take there basic police certification. Because the administration of the tests is standardized, if the officer did not conduct the tests exactly in accordance with his training, the reliability of the tests is compromised. Any deviation from the officer's training can be used to convince a judge that the tests should not be used against you at trial. Also (and more likely), any deviation from the correct way the tests should be performed can help convince a jury to find you not guilty.
18. Challenging the Field Sobriety Tests: Testing Conditions
Many factors can affect he reliability of field sobriety testing and performance results. The Walk and Turn and One Leg Stand tests require a reasonably dry, hard, level, non-slippery surface with sufficient room to complete the test. In real life, the tests are usually performed in an area close to where you were pulled over, and the testing conditions of the area may not be ideal. If the area was un-level or wet, etc.,that could have contributed to your performance on the field sobriety tests and you may have been scored unfairly. If you were wearing shoes with heels more than 2 inches high, you may have also been disadvantaged during testing. Many times the police officer contributes to the suspected DUI driver's poor performance on the field sobriety tests. This is a result of where the officer chooses to have the driver perform field sobriety testing.
19. Challenging the Field Sobriety Tests: Duress
In Georgia, all field sobriety testing is complete voluntary. Many officers phrase their request to perform the evaluations in a manner that makes you feel like you do not have a choice but to perform the tests, but you do. If you were told you must complete the tests or otherwise forced to perform field sobriety evaluations, the officer acted improperly. Your Georgia DUI Lawyer will then be able to argue that you performed the tests under duress. If your attorney successfully argues duress, then your performance on the tests cannot not be used against you at trial. You have an absolute right to perform field sobriety testing in Georgia, and there is almost no reason why you should ever do it.
20. Challenging the Field Sobriety Tests: Custody
If you are under arrest and in police custody, police officers are not allowed to further interrogate you as a part of their investigation of DUI absent Miranda warnings. If you were already under arrest, the officer is required to read you Miranda warnings before asking you to perform field sobriety tests. If the officer failed to do so, your performance on those tests would be inadmissible due to a violation of your constitutional rights. The classic example is that you are already being detailed for a warrant already issued or if the officer witnesses another crime (such as drug possession) in plain view. As a result, you are already in custody, and Miranda Warnings must precede the further DUI investigation.
21. Challenging the Field Sobriety Tests: Age & Weight
Research has indicated that if you are over 65 years of age or 50 pounds or more overweight, you will have difficulty with these field sobriety testing. Your poor performance may be due to these reasons and not due to alcohol or drug impairment. The tests were never validated on people who are elderly or by obese people. Clearly heavy people have a different center of gravity. Also, older people have less physical agility and strength. Nevertheless. many officers will still ask you to perform the evaluations, and will use your performance to support probable cause to arrest you for DUI. This can certainly be a miscarriage of justice. A skilled lawyer can point out to a jury other reasons you allegedly failed field sobriety testing in Georgia.
22. Challenging the Field Sobriety Tests: Medical Conditions
Many medical conditions can cause you to exhibit certain clues while performing field sobriety tests. Nystagmus, which is looked for during the Horizontal Gaze Nystagmus test can be the result of medical conditions that have nothing to do with being under the influence of alcohol or drugs. It is characterized by the involuntary jerking of the eye. It can be present when intoxicated, but it can also be caused by certain pathological disorders and recent head trauma. Certain prescribed medications, especially seizure medication, can also cause a nystagmus. Any physical impairments or inner ear disease that affects your balance or coordination may also cause you to perform poorly on the Walk and Turn test or the One Leg Stand test. As a result, there are many other factors that can cause a suspected DUI driver appear impaired on field sobriety tests.
23. Challenging the Alco-Sensor (The breath test on the side of the road)
An alco-sensor is a portable breath testing device used by Georgia officers to determine your BAC at the traffic stop. The numerical results of the test are not admissible in court. The officer can only testify as to whether the result was positive or negative for alcohol. The prosecution must be able to show that the device used was of a design approved by the Division of Forensic Sciences. If the alco-sensor was not an approved device, the officer cannot testify that it was used at all. Also, the officer cannot attempt to admit the actual reading of it at trial.
24. Challenging the Search of Your Person: Illegal Pat-Downs
A pat-down can lead to an arrest for having illegal drugs, paraphernalia, or other substances and can initiate an investigation for DUI if performed during a traffic stop. Many Georgia officers perform pat-downs as a routine procedure during traffic stops or investigations. An officer is only authorized to perform a pat-down, though, if he has a reasonable belief that you are armed and present a danger to himself or others. It is not enough that the officer asked you to step out of the vehicle and because you were now face-to-face with him, he felt threatened. If you are reaching for your pockets, that may be enough to ask to pat you down, but pat-downs cannot be conducted as a routine or by policy. A successful challenge to a pat-down that revealed an illegal substance can lead to that evidence being suppressed. In essence, the arresting officer cannot create the circumstances that then allow him to perform a search of your person.
25. Challenging the Search of the Vehicle
Both the Fourth Amendment to the United States Constitution and the Georgia Constitution prohibit unreasonable searches and seizures. You have a constitutionally protected expectation of privacy that prevents law enforcement officers from searching you or your vehicle without probable cause or a reasonable suspicion of criminal activity. If you appear nervous, this alone will not create cause to search you or your vehicle. Any evidence obtained illegally cannot be used against you in a criminal case. An officer can search anything that you consent to being searched. Your consent must be voluntary, though, and not the result of duress or of any promises made to you by the officer. The clear rule is to never consent to a search, even if intimidated by a police officer.
26. Challenging the Search of the Vehicle: Passenger Rights
In some cases, the passengers may be also arrested during the investigation. The most common offense is Obstruction of a Law Enforcement Officer. This happens when the person interferes with the DUI investigation in some way or for possession of illegal substances or weapons. In Georgia, the passenger has similar rights as the driver in challenging his detention resulting from an illegal stop. The police also do not have the right to arrest someone for taking a video of the arrest of the driver. Taking a video of the officer is allowed, and quite frankly they need to get over it. (that was an editorial comment) However it is a good idea for passengers to stay out of the way of someone's DUI arrest. Being in the right does not prevent an unnecessary arrest.
27. Challenging the Implied Consent Notice
Georgia law requires any person arrested in this State for DUI to submit to chemical testing of your breath, blood, or urine to determine the presence of alcohol or drugs. The arresting officer is required to request the test by reading the Georgia Implied Consent Notice at the time of arrest. If the officer misleads you in any way or induces you to submit to testing the chemical test in your case may be suppressed. Also, if the officer does not follow proper protocol in reading the Implied Consent Notice, the test results may be suppressed and inadmissible as evidence against you. For example, the officer cannot give you advice contrary to the implied consent warning. If a breath, blood, or urine test is suppressed, it can significantly impact the strength of your case. If can also lead to a reduction to reckless driving. This is why we investigate our client's cases.
28. Challenging the Implied Consent Notice: Hearing Impaired Defendants
If you are hearing impaired, the officer is required to request a qualified interpreter prior to reading you the Implied Consent Notice. In Georgia, “hearing impaired” has been interpreted to mean “an impairment that prohibits the person from understanding oral communications when spoken in a normal conversational tone.” Even if you do not understand sign language, the officer must request such an interpreter in order to request a chemical test to determine the presence of alcohol or drugs. If the officer requests an interpreter and one is unavailable, any advisement of your rights must be in writing. If the officer fails to accommodate you in this way, the results of any test you submit to may not be used as evidence in trial.
29. Challenging the Implied Consent Notice: Misleading Information
If the officer gives an inaccurate or misleading advisement of your implied consent rights, he has deprived you of your ability to make an informed decision of whether to submit to chemical testing. Commonly, an officer may incorrectly read the notice or advise an out-of-state licensee that their license will be suspended, instead of stating that their privileges to drive in the state of Georgia will be suspended. When misinformation is given to a suspected DUI driver in Georgia, it can cause a Georgia Court to suppress the result of the chemical test. Misinformation must fundamentally alter the meaning of the Georgia Implied Consent Warning.
30. Challenging the Implied Consent Notice: Incorrect Version Read
The arresting officer must read the appropriate Georgia Implied Consent Notice depending on your age or driver's license status. There are separate notices for drivers age 21 or over, drivers under age 21, and drivers of commercial vehicles. This is due to the differences in the “per se” level of impairment and license suspensions as applied to these separate classes of drivers under Georgia law. If the officer does not read the correct notice, then you were not properly advised of the consequences of submitting to a test. As a result, those results cannot be used as evidence against you.
31. Challenging the Implied Consent Notice: Not Read at Time of Arrest
With the exception of cases involving accidents resulting in serious injury and extenuating circumstances making it impractical, you must be placed under arrest before the officer can read you the implied consent notice and request that you submit to a chemical test. Georgia Courts have strictly construed “at the time of arrest” and in most cases, the officer should read the implied consent notice directly after placing you in handcuffs and formally placing you under arrest. The officer should not wait until you have arrived at the police station or hospital to request alcohol or drug testing. If there was a delay in the reading of the notice, the results of any test may be suppressed. Delay is only allowed if there are exigent circumstances.
32. Challenging the State Test: Injury and Physical Limitations
A person with injury or some other physical limitation preventing you from submitting to a State-requested chemical test cannot be used against you as a refusal. Many people suffering from emphysema are incapable of submitting to a breath test. Many people with asthma cannot provide a sample. Also, if you are injured in a car accident, you may not physically be able to submit to a breath test. If you have suffered from a chest of rib injury, a test will also be impossible. Another example is people who are hemophiliacs cannot safely submit to a blood test. There are multiple other legitimate reasons a person cannot submit to testing.
33. Challenging the State Test: Time Limits
The Georgia DUI statute makes it against the law for any person to “drive or be in actual physical control of any moving vehicle while the person's alcohol concentration is 0.08 grams or more at any time within three hours after such driving or being in actual physical control from alcohol consumed before such driving or being in actual physical control ended.” The State test must be given as soon as possible and within three hours of driving in order for the prosecution to prove the elements required in the statute. If the test was given outside of this window, the test is inadmissible. An example is having your blood drawn outside of the three-hour limit. Another example is when a police officer sees you sleeping on the side of the road and cannot prove the time you actually drove.
34. Challenging the Breath Test: Tests Not Sequential
Georgia law requires that there be two sequential breath samples given for each test. If you are able to give one adequate sample that produces a test result, but the next sample gives an insufficient reading, the first result is still admissible as evidence. If a third sample is taken, the result needs to be within the appropriate parameters but can discredit the reliability of the testing device. Further, the results cannot be used as evidence if not given on the same testing device. If the results of the test are .020 apart, then the test is not admissible as well. The reason is that the accuracy of the breath test machine would be in question if the result of two tests is that far apart.
35. Challenging the Breath Test: Maintenance and Operation of Equipment
There are requirements for properly maintaining and operating the Intoxilyzer 5000 breath-testing machine. An investigation can reveal whether the machine had a properly dedicated power source, the operator was properly trained and certified to use the machine, that the mandatory pre-tests were conducted, and whether the machine had been properly serviced on a quarterly basis. An area supervisor must run a simulator solution with a known value in order to make sure the machine is testing properly. In Georgia, quarter the area supervisor must certify every breath-testing machine used in Georgia. Of course in Georgia, the definition of the word “quarter” does not necessarily mean every 90 days.
36. Challenging the Breath Test: Testing Room Conditions
The breath testing room itself can cause false positives on the Intoxilyzer 5000 if there was any likelihood of radio frequency interference or if the room had recently been painted using paints containing certain chemicals. A thorough investigation will reveal if the police station's policies take these considerations into account and whether they may have affected your test results. In addition, there must be a dedicated power source for the breath-testing machine because spikes in the power can cause an incorrect result on the test.
37. Challenging the Breath Test: Mouth Alcohol
Before providing a breath sample, the officer must have observed you directly and continuously for a minimum period of 20 minutes. The purpose of this is to eliminate any possible residual mouth alcohol that could potentially affect the test results. Even items that do not contain alcohol may cause the machine to report the detection of alcohol. Smokeless tobacco, denture adhesive, mints, lip balm, and blood can all cause higher readings if present in your mouth during testing. Furthermore, many medical conditions can lead to false positive breath test readings. If you suffer from gastric reflux, any regurgitation could raise the level of mouth alcohol present within 20 minutes of submitting to a breath test. If the officer failed to observe the required 20 minute period, the weight and credibility of the test results are diminished. To present a mouth-alcohol defense to your Georgia DUI, you will have to hire an expert witness to explain it to the jury.
38. Challenging the Breath Test: Tests are Outside of Perimeters
The State of Georgia uses an Intoxilyzer 5000 breath testing machine. and if two sequential breath samples on the machine are not within 0.020 grams percent of each other, the results are “out of parameters” As a result, the test is invalid and the results are not admissible. That means that the test cannot be used in a Georgia DUI case. The reasoning is that the test cannot possibly be reliable when there is a such a variance in the reading in such a short period of time.
39. Challenging the Blood Test
Blood tests can be challenged for several reasons including the potential for error during collection and testing, machine malfunction, variations in results when blood plasma is tested rather than whole blood, etc. The State must also prove the chain of custody of the blood sample to show the sample has not been contaminated, switched, or tampered with. There may be additional considerations if the State attempts to introduce a blood test result taken at a hospital's request for treatment purposes. Hospitals generally don't keep track of the chain of custody of the blood tested. Also, they generally destroy the remaining blood, thereby preventing an independent test.
40. Challenging the Blood Test: Marijuana Cases
If you were charged with DUI Marijuana, you may be able to challenge the types of metabolites that were found in your blood. Not all marijuana metabolites are psychoactive and would not impair your ability to drive. In Georgia blood is routinely only tested for non-psychoactive marijuana metabolites. As a result, your Georgia DUI Attorney can argue to a jury that the test given does not actually show impairing marijuana. You will have to hire an expert to present this defense. Your lawyer can only present your DUI case but cannot testify for you. That's why an expert is needed.
41. Challenging the Blood Test: Prescription Drug Cases
Even if you are taking a prescribed medication, you can still be charged with DUI prescription drugs in Georgia. This can happen if you are taking a higher dosage than prescribed, and it has impaired your ability to drive. The fact that you have a prescription for the medication is not a defense. You cannot be under the influence of perfectly legal medications. You will likely have submitted to a blood test. One possible defense is that the blood test results may show that you had an amount of the drug in your system was within the “therapeutic” levels prescribed by your physician This will required the testimony of an expert witness. Usually the expert is a Doctor of Pharmacology.
42. Challenging the Blood Test: Qualified Personnel
Georgia law requires that the personnel drawing the blood for testing must be qualified to do so and must have used proper legal methods of drawing and testing the blood. A thorough investigation can reveal errors in the methods and procedures used during testing. In addition, the State cannot present the blood evidence unless they call the phlebotomist to court to testify. The prosecutor cannot use the result unless they can show the blood was draw correctly and the complete chain of custody thereafter.
43. Challenging the Urine Test
Urine tests are the most inaccurate of the three most common tests for alcohol or drugs. The quality of the sample deteriorates rapidly, and there is no way to quantify any result because every person metabolizes alcohol and drugs differently. There is also a lack of regulations in Georgia as to the qualifications of personnel and the method used to test urine. Challenges can also be made that urine tests only show what substances are leaving your body and do not show if you were impaired by the substance at the time of driving.
44. Challenging the Refusal
Refusing to submit to State chemical testing can be admitted as evidence against you during trial. Many times, those who were charged with refusal did not actually intend to refuse the State's test. Silence, even after being advised of your right to remain silent, will be construed as a refusal. Not understanding the implied consent notice or the consequences of refusing or submitting to a State test are not defenses. But if you were not adequately advised of your implied consent rights, your refusal to submit to testing may be deemed justified. Many refusals are non-verbal and only the judgment of the police officer.
45. Challenging the Refusal: Rescission of Refusal
After initially refusing to take a chemical test, you can subsequently consent to testing. To invalidate your refusal, your request for testing must be made within a very short and reasonable time after the prior refusal. You must rescind the refusal at a time when the test would still be accurate, when testing equipment is still readily available, when honoring the request would result in no substantial inconvenience or expense to the police, and when you have been in custody of the arresting officer and under observation for the entire time since arrest. If you are then not allowed to take a test, your refusal may be suppressed and cannot be used against you at trial. One interesting issue is when you rescind your refusal after arresting officer has secured a warrant for your blood.
46. Challenging the Denial of an Independent Test
The Georgia Implied Consent Notice advises you of your right to an additional independent chemical test of your blood, breath, urine or other bodily substance at your expense and from qualified personnel of your own choosing after first submitting to the required State tests. The officer must make reasonable efforts to accommodate you in obtaining an independent test. If you request an independent test but are unable to obtain it, the results of the state-administered test cannot be used by the State as evidence against you at trial. In evaluating whether your right to an independent test was violated, the courts will look at the totality of the circumstances and specifically: your ability to pay for the requested test; the delay in giving the test if the officer complies with your request; availability of police time at the time the request is made; location of the requested facility; and your ability to make arrangements personally for the test.
47. Challenging the Denial of an Independent Test: Payment
You must have the necessary funds to pay for the an independent test, but the officer must also allow you a reasonable opportunity to make arrangements personally to obtain those funds and locate your desired testing facility. The officer cannot make the determination that you are not able to pay for the test without investigating other available means or enabling you to make your own arrangements. That may include being taken to a nearby ATM to get sufficient cash or being allowed to use your cell phone to locate a hospital that would accept a credit card. Many officers advise those suspected of DUI in Georgia about hospital polices. This is done in an attempt to discourage an independent test. This misinformation can result in the officer's test being thrown out.
48. Challenging the Denial of an Independent Test: Request for Multiple Tests
Many times an officer may argue that a suspected DUI driver is unreasonable or using “stall tactics” by requesting multiple chemical tests. However, more than one test may be requested by the accused. Failure to accommodate a request for an additional test or tests is a violation of the Implied Consent statute. Such a violated precludes the State's use of its tests as evidence. Remember, the accused cannot select the State's test. You have to first submit to the State's test before they have a right to an independent test. After taking the State's test, you are then entitled to an independent test from qualified personnel of your own choosing. This accommodations must be permitted unless that are extenuating circumstances precluding that accommodation.
49. Challenging the Denial of an Independent Test: Inadmissible Tests
If you receive an independent test but it is later deemed inadmissible in court, your right to an independent test may not have been reasonably accommodated. Since you cannot actually use the results of that test during trial, the State may be precluded from using their test against you. You have an absolute legal right to an independent test, and the State of Georgia cannot contribute to a violation of your right to independent testing.
50. Challenging the Denial of an Independent Test: Personnel of Your Choosing
The arresting officer must take you to the hospital of your choice, within reason. The officer cannot simply choose the closest location for his own convenience. You have the right to choose where you take the test. The officer must also make reasonable accommodations such as taking you to an ATM to get money to pay for the test. Reasonability does not mean the officer has to travel past multiple hospitals in order to take you to your own personal doctor.
--- Bonus Defense to your Georgia DUI: The Officer cannot do the tests himself
Many times the arresting officer incorrectly explains or demonstrates the field sobriety tests. As a result, the officers will contribute to your poor performance on the tests. This why it is important that your Georgia DUI Lawyer reviews the video in your case. If there is no video, we generally have the officer demonstrate the field sobriety tests at trial. If the officer cannot properly demonstrate the tests, it calls into question the entire DUI case.
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