Have You Submitted to Preliminary Breath-Testing During a Georgia DUI Arrest?
Has a Police Officer Administered an Alco-Sensor to You During Your DUI Arrest?
Many officers will ask DUI suspects to blow into an Alco-Sensor to obtain a preliminary breath sample to assist them in determining whether the suspect is an impaired driver. This is part of the pre-arrest screening of a DUI suspect, and is performed roadside. In the vernacular, this is called taking a “P.B.T.”
While the results of the test can play a major part in a person's arrest, in Georgia, the numeric reading of the P.B.T. cannot be used by the State as evidence during the case against the accused. However, the arresting officer can testify that the Alco-Sensor reading was positive or negative for the presence of alcohol.
How a jury views this parsing of words is a subject of much debate in both prosecution and defense communities. Any person with a small amount of common sense understands that the machine has a numeric reading, yet juries cannot hear it. I know from personal experience of more than 50 DUI jury trials that jurors generally look perplexed when the reading is not given to them.
Interestingly, there is a real reason the result is not admissible in evidence. The Alco-Sensor result has not reached a level of scientific reliability required by Georgia Courts under the Harper standard. See Harper v. State, 249 Ga. 519 (1982).
Even without the use of the actual reading on the P.B.T., its results instruct an investigating police officer whether a suspect many be under the influence of alcohol. Many times, the numeric result completely influences the arresting officer to continue or end a DUI investigation. This is not how the use of this test was intended, however, officers tell me it's extremely hard to ignore a number right in front of their eyes.
In fact, police officers that start an investigation with the Alco-Sensor very often allow the result to bias their judgment of the other field sobriety tests administered in the case. As a result, the officer will incorrectly score and exaggerate their findings on other field sobriety tests. This is simple psychology.
The arresting officer should consider all of the field sobriety tests, as well as the manner of a person's driving, before making the arrest decision. The Alco-Sensor result should play a limited part in this determination because Georgia Courts have not yet deemed it to be reliable. See Harper v. State, 249 Ga. 519 (1982).
Should A DUI Suspect Take an Alco-Sensor Test?
The short answer is absolutely not. Like all field sobriety tests, the testing is voluntary. No person should ever perform field sobriety testing because the evaluation of these tests is 100% subjective. These tests set up a suspect up to fail, because they are also administered by a police officer who already believes the person they pulled-over is under the influence of alcohol or drugs. That fact alone biases their judgment and opinion.
The Also-Sensor, also voluntary, is not deemed to be reliable. As a result, no person should ever take it, period. It's unreliable because it lacks the sophisticated hardware and software necessary to prevent false positives from things like residual mouth alcohol and other substances that have a similar chemical structure to ethyl alcohol, such as acetone and acetaldehyde.
Where the Confusion Starts in Georgia Breath Testing:
Many people confuse the officer's request for the mandatory State-administered breath test with the Alco-Sensor test that they had already taken. People call me every day and tell me that they took the “breath test,” but the paperwork shows a refusal. This is the most common misunderstanding people seem to have when trying to understand their Georgia DUI case. The entire purpose of this Georgia DUI Information website is to help clear up confusion and misunderstanding.
When a person is arrested (whether they have taken the Alco-Sensor or refused it), the officer reads the Georgia Implied Consent Warning. At the end to the warning, the accused is asked, “will you submit to the State-administered chemical test of your breath under the Georgia Implied Consent Law?”
Unlike the field sobriety tests, the State-administered test is mandatory. If refused, there are consequences such as a one-year hard license suspension (as suspension without a permit to drive). Additionally, the fact that a person refused testing will also be used in the evidence of the case at a their trial.
There is even a very biased jury instruction given during a DUI trial that basically tells a jury that they can assume a person refused because they felt that they would not have passed the test. It's a rebuttable presumption, yet a strongly worded statement to a jury in a DUI case.
Of course, if a person submits to testing, the results of the test are admissible in the trial of the case. There are certain presumptions in Georgia law insofar as breath testing is concerned.
A breath test result (for a person over the age of 21) of 0.05 grams or less creates a presumption that the person was not impaired. It is important to note that other evidence of impairment can rebut this presumption.
A breath test result between 0.05 - 0.08 grams neither creates a presumption of impairment nor lack there of. Both the defense and the State can present evidence, and the jury decides how to interpret that evidence.
A breath test result of 0.08 grams or more creates a presumption of impairment. People refer to this presumption as the “legal limit,” however, as noted in this article, a person can be charged with DUI despite having a result of less than 0.08 grams. In that situation, the charge would be DUI Less Safe, and the State would have to prove that due to the consumption of alcohol, a person was not as safe to drive as if they had not consumed alcohol. Whether a person is less safe to drive is also a question for a jury to determine.
Can a DUI Suspect Get an Independent Chemical Test?
Georgia law requires that the arresting officer allow you to have an additional chemical test of your choosing once you have submitted to the State's test. This does NOT mean you can tell the officer which test you will or will not take. A DUI suspect must take the test the officer chooses. After submitting to officer's chosen test, then the accused may request an independent test. The key fact is that the accused does not have the initial choice. This also confuses people because in some States the accused has the right to choose their test, and as result people often refuse testing because they believed they had a right to choose which test was given.
If You Have Been Arrested For DUI In Georgia There is Hope:
If you have been arrested for DUI and have submitted to any chemical testing, act now. You only have 30 days to have your Georgia DUI Attorney file an appeal to save your driver's license. Atlanta DUI Attorney Richard Lawson is a former DUI Prosecutor with more than 20 years experience defending people accused of DUI throughout Metro Atlanta and North Georgia. Call 24 hours a day, 7 days a week. We are here when you need us most.