In Georgia, the accused cannot decide what kind of test he or she will take in a DUI arrest. The arresting officer in a DUI case has the choice to request a breath, blood, urine, or other bodily substances to determine if someone is under the influence of alcohol or drugs.
The Georgia implied consent warning ends with the officer designating the type of test of his or her choice.
When a person is accused of a DUI in Georgia and refuses to submit to the test chosen by the police officer, even while volunteering to take another test, he or she will be charged with a refusal.
Independent Testing in Georgia:
Once a person has submitted to the test selected by the police officer, he or she can request an independent test, at his or her own expense. If the officer does not make a reasonable attempt to accommodate an independent test, the officer's test cannot be used in evidence against the accused.
Reasonable accommodation does not mean any hospital but someplace close by that has qualified personnel.
A Consciousness of Guilt or Lack Thereof:
Breath testing is inherently unreliable. Accordingly, many people request a blood test, instead of the breath test requested by the police officer. As a result, a person may be accused of refusing because they would not take the officer's test first. Remember, in Georgia, the police have the right to choose the initial test.
I have long called this a "soft refusal" because a person wanting to take a blood test does not have the consciousness of guilt as an individual who refuses all testing.
Willingness to take a superior test is not a complete defense if you are accused of refusing the officer's test. However, lack of a guilty conscience may be persuasive to a prosecutor or jury.
In differentiation, a person accused of being under the influence of illegal drugs or medication, who demands a breath test, is acting with a consciousness of guilt. It is common sense that a breath test would not detect medication or illegal drugs.
Thus, when someone requests the wrong test, it may persuade a jury that they are guilty as charged.
Remember, the only way to get an independent test is to first submit to the test the arresting officer chooses.
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