Blood and Breath Tests

GA Law on Taking State Chemical Tests Changes July 1!

You need to know about a change in the law regarding taking state chemical tests after being arrested for DUI. This change takes affect on July 1, 2017.

Currently, if you are arrested for DUI and either take the test and register above the legal limit, OR if you refuse the test, your license can be “administratively” suspended for either 4 months (if you take the test) or one year (refusal), prior to ever going to court on the actual DUI charge. You have 10 business days to request a hearing with Drivers Services to try and keep your license from being suspended.

Beginning July 1, this will be the law:

For a 1st DUI arrest in 5 years, whether you take the test or refuse the test, you may opt to obtain an Interlock Ignition Device on your car, which is valid for one year; OR you can opt for a hearing by sending in a request to DDS, along with a $150 fee, within 30 calendar days of the date you receive notice of the officer’s intent to proceed with an administrative hearing.

If you take the test, and opt for a hearing, your license is administratively suspended for 30 days, after which you can get license reinstatement. If you are acquitted of the DUI or the charges are reduced, your limited permit is revoked and your license is reinstated with no fee.

However, if you refuse testing and opt for a hearing, your license could be administratively suspended for a year without any possibility of a limited permit. If you waive your administrative hearing and opt for an Interlock device you can obtain a limited permit for a year. However, if you are acquitted of the DUI or the charges are reduced, you still must maintain an Interlock Device and limited permit for a year.

It appears that law has NOT changed for multiple DUI arrests in 5 years.

While installation and maintenance of Interlock Ignition Devices can be a real pain, this new law does give you the opportunity to either take the test and worst case get a limited permit for 120 days, OR refuse the test and know that you will have a limited permit for a year, regardless of whether you win your case or not.

Your Right To an Independent Test Under the Implied Consent Law

The Georgia Implied Consent statute basically says that when a person is arrested for DUI, they have “impliedly consented” to provide the State with a sample of their blood, breath, urine or other bodily substance for the “purpose of determining if you are under the influence of alcohol or drugs.”

While there are, in my opinion, many Constitutional problems with requiring a person in Georgia to perform an act which could incriminate that person, today I wanted to discuss your “rights” under the Georgia Implied Consent Law.

After the arrest, the officer will read a section of the law to you. He will ask whether you will submit to a State chemical test of your breath (or blood or urine).

He will also inform you that, once you take the State test, you are entitled to an independent test, of your own choosing, by qualified personnel, of your blood, breath , urine or bodily substance.

HOWEVER, if you choose to take the State’s test, and then decide to have an independent test, you need to know the following:

  1. You must make a request that can be reasonably construed as a request for an independent test. Simply mentioning, say, prior to arrest, words such as, “ I will take a blood test”, may NOT be construed as such a request. You need to emphatically, more than once, say, “I would like an independent test of my blood, or breath, urine or other bodily substance.” Then you must designate which test(s) you choose.
  2. Once you make a request, the officer has to “reasonably accommodate such request.” Therefore, he must take you to the hospital of your choice for a blood test, provided, of course that your choice of hospital is reasonable. (you cannot request the officer to take you to a hospital an hour away); or he must get an independent breath test, or he must somehow figure out what “other” bodily substance can be tested.
  3. If you have made a valid request for an independent test, and the officer does not reasonably accommodate your request, then any State chemical test would be inadmissible in evidence against you.
  4. Remember: if you “refuse” to take the state test first, then not only can your license be suspended for a full year, you do not have the right to a chemical test of your choosing.

 

Mickey