I Took the Breath Test But the Officer Says I Refused

Posted by Richard Lawson | Jul 13, 2014 | 0 Comments

One of the more confusing parts of a DUI investigation is when the arresting officer asks for what many people assume is a “second breath test.”

Most police officers carry with them, or have access to, a portable Alco-sensor.  This device is not the State-administered breath-testing device.  The police officer cannot even use the numeric result of the Alco-sensor in the case against the suspected DUI driver.

However, the fact that the result of portable Alco-Sensor is not allowed into evidence against the accused is NEVER EXPLAINED TO THE PERSON ARRESTED FOR DUI.

As a result, when a person is arrested and read the Georgia Implied Consent Warning, they naturally assume that they have already submitted to a breath-test because they have taken the Alco-Sensor test.   Further, since they have now been arrested (after cooperating up to that point), many people decide that there is no reason to continue cooperating, since that cooperation lead to the person being arrested in the first place.

Compounding the confusion is the language in the Georgia Implied Consent Warning itself.  The warning says that a person is required to submit to the State-administered chemical test ….  This is warning only a lawyer could possibly understand.

“State-administered?”  Who administered the Alco-sensor on the side of the road?  Answer:  The Police officer administered it while working for the local municipality, county or the Georgia State Patrol.

Surely, anyone could be confused about the wording of the warning as well as with the fact that they already took the roadside Alco-sensor.  This is why so many people tell me, completely befuddled, that they took the breath test, yet the officer has written the word “refused” on their ticket.

This confusion is the result of a poorly written implied consent warning.  I have advocated for years for a more fair and complete Georgia Implied Consent warning.

I suggest the following change:

Georgia law requires you to submit to the State-administered chemical test of your blood, breath, urine, or other bodily substance for the purpose of determining if you are under the influence of alcohol or drugs.

If you have already submitted to a breath-test on the side of the road, that is not the official breath test, and it's numeric result cannot be used in evidence against you.

If you refuse the requested State-administered official test, your Georgia Driver's License or privilege to drive on the highways of this State will be suspended for a minimum period of one year….

The small addition explaining the Alco-sensor would be far more fair and honest with anyone suspected of DUI in Georgia. There is simply no reason to confuse countless people accused of DUI throughout Georgia.

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Richard Lawson

Managing Partner at Lawson & Berry:


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