The DUI Less Safe Catch-22: Refusing the Georgia Implied Consent – State Test.
Flashers appear on your rear-view mirror on Interstate 285. The officer briefly interacts with you, then arrests you for suspected impaired driving. After the handcuffs make one sound, the officer pulls out a bright green card and reads a legalistic and stiff paragraph. This is the Georgia implied consent warning for suspects over 21 years old. The officer concludes the warning by asking whether you will take the state-administered chemical tests of blood, breath or urine. Now you find yourself in one of the most complicated choices in Georgia Criminal law: between two species of driving while intoxicated.
You’re going to need to know what Georgia considers to be drunk driving in order to grasp this dilemma. An official code of the laws of Georgia provides that prosecutors may seek a conviction on two separate tracks, as described in Official Code of Georgia Annotated section 40-6-391. DUI per se is the first pathway. That means you were intoxicated — either your BAC was 0.08 grams or greater — within three hours of driving. If the state has a printout of the machine reading that shows a number greater than the legal limit, you don’t have to prove you were driving erratically when they pull you over. It is the number itself that is the crime.
The second one is DUI Less Safe. The law allows prosecutors to not require a specific BAC reading. They need only to show you were a less safe driver by drinking alcohol. They construct the cases from the information given to them by the officer, based on your execution of the field sobriety tests, slurred speech, and any traffic violations you may have committed prior to the stop.
During the reading of an implied consent notice, the officer is seeking scientific evidence to support a DUI Per Se charge. The warning makes it clear that if you decline to take the test, your Georgia driver’s license will be suspended for at least one year. It also advises that you do not submit to testing would be introduced as evidence against you during trial.
This is what makes driving a driving nightmare. By agreeing to the state-administered test and blow over a 0.08, you give the prosecution the scientific information they require for an automatic DUI Per Se conviction. The evidence is tightly tied in a bow. If you assert your right to say “no”, however, the prosecution switches gears to a DUI Less Safe approach. They will try to use your refusal as proof that you were guilty of drinking, which is why you refused the test.
But a handful of recent high-court decisions from the Georgia Supreme Court have turned this tactical playing field on its head. There’s a new difference between refusing a breath test and refusing a blood or urine test. The Supreme Court of Georgia has determined that under the constitution of the state, a driver’s refusal to submit to a breath test is not confessions of guilt and cannot be admitted as evidence against him in a criminal trial.
This implies that one may refuse a breath test, and the prosecutor is prohibited from explaining to a jury that he or she was refused because the potential defendant was less safe. On the other hand, since there are no identical bodily movements involved with a blood or urine test, courts have found that a refusal to provide a blood or urine test can also be used against you.
Even in criminal court, such evidentiary protection is not enough to prevent the harsh administrative sanctions. Declining any of the state administered tests, including breath, blood or urine, automatically suspends your administrative license for one full year in Georgia. This civil procedure is totally independent of your criminal proceedings. There is a 30-day deadline from arrest to request an ignition interlock device permit or appeal. Without doing the same during this 30 day period, you will have your driving privileges suspended before stepping into a criminal courtroom.
It is a road-side choice that presents itself, whether to take or refuse a chemical test for which you must choose between two evils. A refusal means that you are subject to a severe administrative discipline of your driving privilege, but you lose the valuable hard scientific data the state uses to obtain a conviction for a DUI Per Se. If there is no chemical reading, a knowledgeable defense lawyer can question the officer’s subjective views, question the administration of the field sobriety tests and emphasize environmental issues that can create an impairment.
If you remove the blood alcohol column, you have a subjective case. Your driver’s log, which was based solely on your human performance, must prove to a jury beyond a reasonable doubt that you were a less safe driver. When facing criminal charges and a 30 day administrative license suspension after being contacted by police in Atlanta for a traffic stop, your defense strategy should immediately focus on both issues.
