Don’t Drink and Drive-That’s Not the Law, but it is Good Advice!
DUI enforcement has changed drastically in the last few years. Much of the past advice attorneys offered for how you should respond during a DUI investigation and DUI arrest is no longer valid. In many jurisdictions, arrests are being made under Georgia’s DUI less safe law if the officer suspects a BAC above a 0.05. The best way to insure you are not faced with a DUI is to avoid driving after consuming any alcohol or impairing drug. The old rules, such as “one and done” or “one an hour with a meal” don’t always work anymore. In some cases, a single “heavy pour” or specialty drink at your favorite watering hole may be enough to be over a 0.05. Prior planning, such as having a designated driver, taking a limo or cab, using Uber, Safe-ride, or even calling a tow truck to take you and your car home, are all much cheaper than a DUI arrest.
If you are stopped for suspected DUI, asking the officer questions during the DUI investigation is often the best way to protect your rights.
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If you are the subject of a DUI investigation, there is no single answer for what you should say. Too much depends upon your specific circumstances. You should know that everything you say will be used by both the officer to justify your arrest and by the prosecutor at trial. If the officer has made the decision to arrest you, you will not be able to talk your way out of the arrest, so don’t try. If you deny drinking, but the officer can smell alcohol coming from you, that will be used to show you are lying. If you admit to drinking, that too will be used against you.
Ask the officer questions! Do not do anything that you do not understand. Do not make assumptions about what the officer is looking for, especially with any roadside evaluations.
Most drivers who have been stopped for DUI and have been drinking will tell the officer they only had two drinks (they think the officer won’t believe they only had one and they know three drinks might put them over the limit). Even if you only had two drinks, the officer will not believe you. The officer is asking how much you had to drink to gather evidence to establish probable cause to arrest you.
You should not volunteer any information concerning whether you have used any drugs, including prescription drugs. Just because you are on prescription medication does not mean the officer will not use the information to establish probable cause to arrest you.
If you tell the officer you are coming from a bar or party, the officer will use that against you.
If you appear uncooperative, the officer will use that against you, but if you do cooperate, the officer will use your cooperation to gather more evidence against you.
If the officer asks about any injuries or medical problems, take the time to think about any injuries or medical problems you may have. Just because you have become used to something like a bad back or an old knee injury does not mean that it won’t negatively affect your score on roadside evaluations. Officers like to ask generic questions about any medical problems to show that you did not have any issues that would cause you difficulty in performing their evaluations. The officer does not consider that you do not know which medical problems could affect the outcome (or that you may be unaware that you have a medical conditions that could cause you to be scored as impaired).
When a person tells an officer of an injury, officer’s often respond by saying they will “take it into consideration” in scoring the evaluation. The National Highway Traffic Safety Administration’s (NHTSA) Standardized Field Sobriety Evaluations (SFSE) have no criteria or method for taking medical problems into consideration when determining your score – you either exhibit a clue or you don’t. Once you take the evaluation, it does not matter why you exhibited the clue, the clue will be scored as if it was caused by alcohol or impairing drugs.
Most driver’s should politely decline any request for field sobriety evaluations. All field sobriety evaluations are entirely voluntary and can be used against you but your refusal to do field sobriety evaluations cannot be used as evidence against you at trial. Most drivers believe that if they “pass” the field sobriety evaluations the officer will release them. These evaluations are unreliable and complicated and are not scored on a pass-fail basis. Many of us would be scored as “impaired” without having consumed any alcohol or drugs. The clues the officer observed during the field sobriety evaluation are often used to justify your arrest. In most cases the officer is only looking to gather evidence to establish probable cause to arrest you; don’t help the officer make a DUI case against you.
If you believe you are under .08 or if you believe you may be close to the limit, you should consider taking an “Alco-sensor” handheld preliminary breath testing device on scene. In Georgia, all handheld breath testing devices are voluntary with a wide range of error. If you refuse to blow, your refusal may not be used against you at trial. The results of a handheld breath testing device can be used as probable cause to arrest you, but any result, even if it gives a numerical score, will be inadmissible at trial except to show whether it was positive for alcohol. If your result is low enough, the officer may decide not to arrest you, but remember; even if you are under the “legal limit” you may still be arrested for DUI under the less safe law. “Passing” the handheld breath test does not mean you get a pass on the DUI arrest and usually the officer will not show you the result.
If you are 21 years of age or older, have a valid Georgia driver’s license, were not driving a commercial vehicle, were not in an accident involving death or serious injury, have not had a DUI within the past ten years and are not under the influence of illegal drugs, after the officer has placed you under arrest and read you the Georgia implied consent warning, submitting to the required state-administered test of your blood, breath, or urine may be your best option. Your driver’s license may still be suspended, but you may be eligible for a work permit and early reinstatement.
Unless you are under 21 or driving a commercial vehicle, if you are confident that your BAC is less than .08, you should submit to the state-administered test.
If you submit to any requested state-administered test of your blood, breath or urine, you have the right to request an independent test at your expense – you must be clear in your request for an independent test. Your independent test or tests need to be done immediately in order for them to benefit you in court later. You cannot wait until you have made bail to get a blood or breath test.
After submitting to the State test, if you request an independent test and the officer refuses your request, make sure you obtain the identity of any witnesses to the conversation. Do not allow the officer to talk you out of any requested independent test(s).
Georgia law does not provide you with the right to an attorney when you are initially stopped for DUI, but an officer may allow you to call one. In some cases you may be able get your passenger to call and speak with an attorney while you are being questioned. You should ask the officer if you should call an attorney or if you can speak with an attorney.
It is never a good idea to threaten the officer with your attorney or to indicate that you already have a DUI defense attorney on speed dial.
If you are arrested for DUI, the officer will read the Georgia implied consent notice to you. At the end of the notice, the officer asks if you will submit to a state-administered test under the Georgia implied consent law. The officer may ask for breath, urine, blood, or a combination.
If you refuse the requested state-administered test of your blood, breath, or urine, your license (or diving privileges in Georgia) may be administratively suspended for 1 year. This suspension is a “hard” suspension, meaning that you will not be eligible for a work permit or early reinstatement of your driving privileges. If you are served with a DDS Form 1205 Suspension Notice (also known as a 30 day temporary driving permit), you must request a hearing, in writing. to include all of your defenses, within 30 days of your arrest. Otherwise the suspension goes into effect at the end of the 30 day temporary driving permit. This suspension will be rescinded upon acquittal of the DUI or a negotiated plea to reduced non-DUI charges.
If you refuse the state-administered test, some officers, including officers of the Gwinnett County DUI Task Force, will seek to obtain a search warrant for your blood. If the officer has a search warrant and you resist, you will be taken to the jail where they will restrain you and take your blood forcibly. It is rapidly becoming more common for officers to seek search warrants in DUI cases.
In the recent Georgia Supreme Court appeal Mr. Tyler won, the Court held that submission under the implied consent law is not the same as actual, voluntary consent for purposes of the Fourth Amendment. After reading you the Georgia implied consent notice, if you agree to submit under the law, the officer may attempt to obtain your actual consent by asking if your “consent” is free and voluntary. You do not have to provide the arresting officer with voluntary consent. You can agree to submit under the Georgia implied consent law, but refuse to give actual, voluntary consent.
An officer does not have to give a Miranda warning unless the officer questions you about the alleged crime after having placed you under arrest. That is why officers will ask you questions about whether you have been drinking and whether you will submit to their roadside evaluations before placing you under arrest.
If you refuse the requested state-administered test or if you submit to the requested state-administered test of your blood, breath, or urine and your Blood Alcohol Concentration (BAC) is above the legal limit (0.08 or higher for 21 or over drivers; 0.02 or higher for drivers under 21; 0.04 or higher for commercial drivers), your license may be administratively suspended prior to your court date. If you are served with a DDS Form 1205 Suspension Notice (also known as a 30 day temporary driving permit), you must request a hearing in writing to include your defenses within 30 days of your arrest. Otherwise the suspension goes into effect at the end of the 30 day temporary driving permit. In some cases, if you are unsure whether the officer is seeking to administratively suspend your license, you should submit a request for the hearing.
Everyone who pleads guilty or is found guilty of DUI will have their driver’s license suspended. Under certain circumstances, you may qualify for a limited work permit and/or early reinstatement of your license. In certain administrative license suspensions you may also be eligible for a work permit and early reinstatement of your license.
Attorneys will almost always tell you that you need to hire them. In many cases, if you are not fighting your DUI, you may not need to hire an attorney to achieve the same result on a guilty plea. In those cases. you may be able to save the money you would spend on an attorney to pay all of the fines, fees, and surcharges the county and state will charge you. If you do need to fight your DUI or if you have a prior history of DUI arrest or conviction, you need to retain an experienced DUI defense trial attorney in order to achieve the best possible result.
In all cases, you should consult with an experienced DUI defense attorney to help you decide whether you should fight your DUI. An attorney can explain the risks, potential benefits, and possible consequences of all of the options available to you. We offer a free consultation to give you the information you need to make the best decisions in your case.