Georgia DUI law

No Right To Independent Test If You Refuse State Test

In the recent case of Hynes v. St., decided on May 31, 2017, the Georgia Court of Appeals was asked to determine the following: If a person is arrested for DUI, then refuses to take a State chemical test, and, pursuant to a search warrant, his blood is drawn, is he then entitled to an “independent” test of his own choosing?

Hynes was stopped and eventually arrested for DUI. The officer read Hynes the Implied Consent notice, which must be read to a suspected DUI driver before the State can ask the suspect to submit to a State test of his blood, breath or urine. Under Implied Consent law, once a suspect submits to the State test(s), he is THEN entitled to an independent test of his choosing.

In this case, Hynes refused to take the State blood test, asking instead for an “independent test.” The officer then obtained a search warrant for Hynes’ blood, which was taken pursuant to the search warrant.

Hynes filed a motion to exclude the blood test on the grounds that since he did not get his “independent” test, the State’s test was not admissible.

HOWEVER, the law in Georgia is that you are only entitled to a independent test if you take the State’s test as requested by the officer after reading you the Implied Consent notice. In this case, since Hynes did not take the State test, he was not entitled to an independent test, even if the State obtained his blood pursuant to a search warrant.

So the lesson is that if you take the test(s) the officer wants you to take, the officer then has an obligation to reasonably accommodate your request for an independent test; but if you refuse his request, you are not entitled to your own test.

Under the new Georgia law on Implied Consent, you have 30 calendar days to decide whether to ask for a hearing, or have an Interlock Device placed on your car for 12 months with a limited permit.  It is imperative that a qualified experienced DUI lawyer investigate the facts on your case so you can make a competent well  informed decision.



What Happens When You Are Arrested for DUI?

Whether you have been arrested for DUI (Driving under the Influence) for the first time or multiple times, you may be wondering how the DUI process works and exactly what you should be doing NOW.  Below, DUI attorney Mickey Roberts details step-by-step what happens when you’re stopped for suspicion of DUI.

  1. After suspicion or probable cause (for example, operating your vehicle in an unusual or illegal manner), an officer stops your vehicle and requests you to pull over before obtaining your driver’s license, vehicle registration, and insurance card.
  2. After providing the police with your license and insurance, tell the officer you are invoking your 4th Amendment rights. Also tell him/her that you are invoking your 5th Amendment rights as well.
  3. If the officer suspects you are under the influence of alcohol, you will be asked to submit to field sobriety tests such as horizontal gaze, walk-and-turn, and the one-leg stand evaluations.
  4. Following the field sobriety tests, if the officer suspects nothing, you will be released. However, if the officer has probable cause, you will be placed under DUI arrest and taken to the police station. You will be asked to submit chemical testing of breath, blood, or urine.
  5. … Do NOT refuse to take the State chemical tests UNLESS you have had enough alcohol to be above the .08 limit. If you refuse to take the test, your license could be suspended for one year.
  6. If you are under 21, or this is not your first DUI in five years, it is recommended that you refuse to take any state chemical test of blood, breath, or urine. Otherwise, request a blood test and independent breath test with another police department immediately after arrest, and then take the state test(s). Do not refuse to the take the State test outright or your license will be suspended for one year.
  7. Once in custody, invoke your right to an attorney—however, you are not guaranteed the right to call an attorney for advice on a roadside stop. Memorize and print your legal rights NOW to avoid problems at the scene.
  8. You are required to post bond and may be incarcerated until bond is posted.
  9. Your vehicle may be towed, impounded, or seized.
  10. Keep in mind: If you register over .08 on the state chemical test or refuse completion, you only have ten business days from the arrest to request a hearing from the department of Public Safety before your driver’s license will be inevitably suspended.

Stay tuned for a blog coming soon for more on what happens after your arrest. If you are arrested for DUI or other traffic violations, contact Mr. GaDUI today. Also be sure to follow me, Mickey Roberts on FacebookTwitter, and Google+ for more traffic law updates and news.