A DUI investigation, from the police point of view, follows very specific and proscribed steps. First, the officer observes a vehicle in motion: they watch a person drive and look for a reason to stop the car. Second, there is the face-to-face encounter: they come up to the person's stopped car and ask the person questions. They're looking for physical manifestations of intoxication and they'll likely ask some odd questions. Third is the Standardized Field Sobriety Tests: that is three tests designed under scientific conditions to help the officers approximate a driver's intoxication while on the side of the road. The officer may have the person blow into a Preliminary Breath Test (breathalyzer) device which most officers keep in their cars. Finally, based on their entire investigation, the officer may arrest the person.
After a person is arrested the officer reads a little card, the Implied Consent Notice to the person and asks if the person will consent to a test of that person's blood, breath, or urine (alone or in any combination). The card for ordinary drivers over the age of 21 reads:
Georgia law requires you to submit to state administered chemical
tests of your blood, breath, urine, or other bodily substances for
the purpose of determining if you are under the influence of alcohol
or drugs. If you refuse this testing, 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. Your refusal to submit to the
required testing may be offered into evidence against you at trial.
If you submit to testing and the results indicate an alcohol
concentration of 0.08 grams or more, your Georgia driver's license or
privilege to drive on the highways of this state may be suspended for
a minimum period of one year. After first submitting to the required
state tests, you are entitled to additional chemical tests of your
blood, breath, urine, or other bodily substances at your own expense
and from qualified personnel of your own choosing. Will you submit to
the state administered chemical tests of your ( designate which
tests ) under the implied consent law?
Georgia law requires you to submit...
Driving in the State of Georgia is a privilege, not a right. The State can attach certain conditions on driving, like the requirement of insurance, a valid driver's license, and the understanding that a person has already agreed to a chemical test of his or her bodily fluids if an officer believes that the person is driving under the influence of drugs or alcohol. That Implied understanding of Consent to a chemical test of a person's bodily fluids for drugs or alcohol is the legal foundation for Implied Consent.
... state administered chemical tests...
The officer has the discretion to choose which test or tests that he or she wants the person to submit. Typically, the officer will ask for a breath test if he or she suspects a person of driving under the influence of alcohol. Similarly, the officer may ask for a test of a person's blood or urine if suspected of driving under the influence of drugs.
Currently, breath tests are conducted on Intoxilyzer 9000 machines that are held at many police stations. The Intoxilyzer 9000 is designed to only detect alcohol, but because DUI: Alcohol is the most common type of DUI, officers often prefer to use this convenient device despite that limitation. The field preliminary breath test (brethalyzer) is not accurate enough to be used as evidence except for whether or not there was any alcohol on a person's breath. The Intoxilyzer 9000 is considered more accurate and its numerical results can be admitted as evidence at trial.
If the person consents to a blood test then the officer will take the person to the nearest hospital to have blood drawn by a professional in sterile conditions. The blood is then submitted to the Georgia Bureau of Investigation for testing. Usually using a gas-chromatography / mass-spectrometer, a trained GBI analyst will search for the presence of a wide battery of drugs and drug types. They can also test blood directly for blood alcohol content, but blood tests are usually used to look for drugs.
Urine tests are the least common test due to their inaccuracy, but they may be conducted in a number of ways either at the hospital or police station.
If you refuse testing...
Even though each driver has impliedly consented, the Courts have held that actual consent is also necessary for these tests to be constitutional. That means that a person has the option to refuse to take these tests. If a test is refused, the State will not have the quantifiable evidence described above, but it will cost the person his or her license and, if the case goes to trial, the prosecutors will argue that the tests would have shown that the person was intoxicated.
- Past DUIs-
If a person who has previously been arrested for a DUI refuses the State's test, then the prosecution can show the past convictions to a jury. This is because that person is deemed to have greater knowledge of the situation because he or she has already been through it, and, according to the State, this goes to show a plan by the person to elude another conviction by refusing to give the State more evidence.
- "I want a Lawyer!" -
Other states may disagree, but a person DOES NOT have the right to a lawyer's advice during the implied consent stage in the state of Georgia. If a person demands a lawyer then the officer may take it as a refusal.
... your Georgia driver's license or privilege to drive ... may be suspended...
If a person refuses the chemical tests then the officer will almost immediately take the person's license.
If a person tests above 0.08 BAC then the officer will almost immediately take the person's license.
The officer will then issue a DDS 1205 which is a specific type of Administrative License Suspension. The person has 10 days to file an appeal of the license suspension, which is another reason why it is very important to contact an attorney as soon as possible after being arrested for DUI. A skilled DUI attorney knows how to fight for the return of your license from an Administrative License Suspension, which also sets up a good defense in the weeks and months that follow.
... you are entitled to additional chemical tests at your own expense and from qualified personnel of your own choosing.
A person can request his or her own test to be done immediately after the State's test. Whether the State chooses blood, breath, or urine, the person can ask for a second blood-draw to go to an independent lab for testing. The results of the test will be sent to the person requesting it and it can be used to refute the State's test. Timing is key to the entire issue of these chemical tests, so the independent test is usually done almost immediately after the State's test.
Will you submit to the state administered chemical test...?
This is the person's ultimate choice. Often the officers read the Implied Consent Notice in a very robotic, monotone voice that lulls a person into complacency and a lack of meaningful understanding of what is actually happening. The officer will never explain the Implied Consent Notice but will only repeat the whole Notice or only the question portion.
Whatever the choice, nobody should go through the process after the DUI arrest alone. It is always best to talk to a skilled defense attorney as soon as possible. There is plenty of evidence that needs to be gathered immediately and hearings that need to be scheduled. A licensed attorney is in the best position to negotiate with the prosecution and get the best deal, or a dismissal, or win at trial.
I am one of these attorneys who works with DUI accusations on a daily basis. If you or a loved one is accused of DUI in Cobb or a surrounding county then you should call me now. I want to help.