For many years, I have advised people to “refuse” to take a State blood, breath or urine test after arrest if they thought they might register above the legal limit of .08. Now, due to changing conditions, we must rethink that position.
Georgia law says that if you are arrested for DUI, you are “required” to take a test of your blood, breath, urine, or other bodily substance. However, you do have the right to “refuse” to take such test(s). If you take the test(s), you have a right to an independent test of blood, breath, urine, or “other bodily substance.”
The question of whether to take a state test after arrest has always been a troublesome one. On one hand, Georgia law says that when you “refuse” to take a test, your license could be suspended for a full year. That is known as an administrative license suspension (ALS) and must be initiated by the arresting officer. So, if you could get past the license hearing, you had done yourself a favor by not providing the State with your blood alcohol level.
The problem is, we are seeing more and more cops showing up for the ALS hearing and insisting that our clients sign an agreement whereby the client agrees to plead guilty to the DUI, and the cop then agrees to withdraw any one year suspension. These agreements, under a recent Georgia case, can now be admitted into evidence against you, if you decide to go back on the agreement and fight the DUI.
Georgia law says that if you refuse testing, then “NO TEST SHALL BE GIVEN.” However, the legislature changed the license law a few years ago to add that nothing in the law would prevent a police officer from “obtaining evidence by other means”. Recently, some police agencies have started obtaining search warrants to forcibly draw a person’s blood if that person has refused to agree to a State breath or blood test. Not only that, but these officers are also seeking a one year license suspension even after obtaining the suspect’s blood!
While there are currently legal actions arguing that a person or driver’s rights are violated by these forced blood draws, we must take another look at our options when deciding whether to take the test or not.
If you refuse to take the test, not only are you subject to losing your license for a full year with no permit, you may also have your blood drawn, with the results able to be used against you.
Once you do take the designated State tests, you are entitled to an independent test of your own choosing of your blood, breath, urine, or other bodily substances . Once you request an independent test of your choosing, the officer must “reasonably accommodate your request, or otherwise the State test cannot be used against you. As I am not aware as to whether the State is capable of testing “other bodily substances” for blood alcohol level, you might consider requesting an independent test of a bodily substance other than blood, breath or urine.
I would suggest you specifically request a test of either hair or saliva. Then, the burden shifts to the officer to reasonably accommodate your request. For more information, contact me, Mickey Roberts.