WHAT SHOULD YOU DO IF YOU ARE STOPPED FOR DUI IN GEORGIA?

The Reason For The Stop

In order to pull you over for DUI in Georgia, an officer must have a reasonable articulable suspicion to do so. The most common articulable suspicion is speeding. Next comes failure to maintain lane (weaving). Other reasons include not using your turn signal while changing lanes, having a cracked windshield, improper tag, and the list goes on.

An officer does not need articulable suspicion to stop you for DUI when you are involved in an accident or when you are stopped at a roadblock. However, in order for a road-block to be proper, it must be initiated by a supervisor, all vehicles must be stopped, delay must be minimal, it must be well identified as a police checkpoint, and the screening officer's training and experience must be sufficient to qualify him to determine who gets tested for DUI.

The DUI Stop
Including Field Sobriety Testing

Once you are stopped, the officer is required to ask for, and you are required to provide, your driver's license and proof of insurance. If the officer detects an odor of alcohol, he will probably ask you if you've had anything to drink. Next, he will ask you to perform field sobriety evaluations. These usually include the three standardized tests which consist of:

The Horizontal Gaze Nystagmus Test

The One Leg Stand

The Walk and Turn Test

Of the three, the Horizontal Gaze Nystagmus (HGN) Test is the most accurate assuming it is properly administered and properly scored. If all three are given properly and scored properly, and if you fail all three, then an 84% chance exists that your blood alcohol level is .10 grams % or higher.*

*Now that there is a push to lower the per se alcohol level to .08, look for "studies" that will show these tests can now give an indication of a .08 grams % blood alcohol level. Read the official NHTSA REPORT on this subject, a rather dry read. I found the last paragraph of page 27 and first full paragraph on page 28 especially interesting. (You must have Acrobat Reader installed to access this information. Download Adobe Acrobat® free). I welcome the reaction of any prosecutor, judge, or police officer (or anyone else for that matter) to these paragraphs. Contact me to voice your opinion.

If the three are not given or scored properly, they mean virtually nothing. The Horizontal Gaze Nystagmus test is purportedly the only one of the three that the Georgia Court of Appeals considers scientific. It also happens to be the one least likely to be administered and scored correctly by an officer. If you have a trial in which the HGN Test is admissible, real medical experts are available to give real scientific testimony on the HGN Test. Make sure you ask your attorney about this valuable defense.

Your defense lawyer will want to question the arresting officer closely about his/her Field Sobriety Training, as well as how he/she administered and scored the roadside field tests. Courts rely on these evaluations to determine whether or not the officer had probable cause to arrest you for DUI.

I have found that many officers make mistakes both in the administration and the scoring of these tests. These mistakes diminish the value of the tests for determining probable cause to arrest. Usually officers do not bring their field sobriety training manuals to court. A good DUI lawyer will have certified copies of the arresting officer's own manuals to use against the officer in court.

Other tests that officers like to give are saying the alphabet, touching index fingers to nose, finger counting, and stating the day, date, and time. None of these tests has any scientific validity for determining whether or not someone is under the influence of alcohol.

Another roadside test commonly administered is the Alcosensor®. This is a handheld device into which the officer inserts a clean mouthpiece and requests that you blow until he tells you to stop. This device gives a three-digit readout on your breath alcohol content. Although the actual test results are inadmissible in court, the officer can, upon laying the proper foundation for such evidence, testify as to whether the results were positive or negative. I have found through personal experience that a portable breath tester is unreliable when used for consecutive blows.

The question always comes up as to whether you are required to take any of the above-mentioned roadside field tests. The answer is "no, you are not required to take any of these tests." You are under no legal obligation, and no legal penalty attaches for declining to take these tests. Unless you were coerced or promised any benefit for taking the tests, they are voluntary.

The next question is whether you should take any of the above tests. The answer is "absolutely not." Police officers use these tests to help develop probable cause to arrest for DUI. Why would you take a test from an officer who might not even be properly trained, especially when no legal penalty attaches for refusing to take them.

Once you are arrested for DUI, the officer is required to advise you of certain rights called your implied consent rights. He will request the official state test of your blood, breath, urine, or any combination thereof. This implied consent notice will be discussed later.

Dos and Don'ts

What should you do if you are stopped? You must provide your driver's license and proof of insurance. If your driver's license is suspended, neither confirm nor deny this fact to the officer. You either have insurance or you don't. If you just cannot find the card, don't be concerned; simply provide a copy of it to your attorney.

What shouldn't you do? Never answer any preliminary questions such as where you've been, how much alcohol you've consumed, etc. Never perform any roadside tests. Never blow into any handheld device on the side of the road (taking the official state test at the police station is different and is discussed later). Never argue with a police officer. Always be respectful and polite. Do not resist if handcuffed.

You are probably wondering how you politely decline to answer any questions or take any roadside tests. The solution is surprisingly simple; if you tell the officer that you will be glad to answers any questions or take any roadside tests as long as you have an attorney present, you have just refused without refusing. No penalty attaches at this point because you have no legal obligation to answer any questions (except as they pertain to your identity and address) or perform any roadside tests including the Alcosensor.

Do not let an officer's actions or words intimidate you into doing something you have no legal obligation to do. You can contact my office and request a Driver's Rights Card to carry in your wallet or purse or you can download my Driver's Rights Card .

Once you decline the roadside dance, you will probably be arrested for DUI. If an officer detects alcohol on your breath, an arrest is almost inevitable.

The Arrest

Most people know when they are arrested. Usually an officer tells you that you are under arrest for Driving Under the Influence of Alcohol; you are handcuffed and placed in the back of his patrol car. Tell your attorney the circumstances surrounding the stop and detention. Perhaps you were under arrest prior to being told so. This could be useful information to your attorney.

At the time of your arrest, the arresting officer is supposed to advise you of your implied consent notice. If you are 21 or over and not operating a commercial vehicle, the notice should be substantially as follows:

Georgia law requires you to submit to state-administered chemical tests of your blood, breath, urine, or other bodily substances for the purpose of determining if you are under the influence of alcohol or drugs. If you refuse this testing, your Georgia driver's license or privilege to drive on the highways of this state will be suspended for a period of one year. Your refusal to submit to the required testing may be offered into evidence against you at trial. If you submit to testing and the results indicate a blood alcohol concentration of 0.10 grams or more [DUI Guy Note: 0.08 for cases made on or after July 1, 2001], your Georgia driver's license or privilege to drive on the highways of this state may be suspended for a minimum period of one year. After submitting to the required state tests, you are entitled to additional chemical tests of your blood, breath, urine, or other bodily substance at your own expense and from qualified personnel of your own choosing. Will you submit to the state-administered chemical tests of your (designate which tests) under the Implied Consent Law?

(CLICK HERE to read statutory notices for underage and CDL drivers from the Georgia State Government web site.)

Absent any emergency, the notice should be read at the time of the arrest. If not done in a timely manner, any test result or refusal to take the test will be suppressed from evidence.

When an officer reads the foregoing notice, he will ask for a test or tests of your blood, breath or urine.

Q: Do you have to take the state test?

A: No.

Q: What will happen if you do not take the state test?

A: The officer will write you up as a DUI refusal and submit a form to the Department of Public Safety initiating an Administrative License Suspension (ALS) hearing. ( CLICK HERE for more detailed information on administrative suspensions.) You could lose your license for a year or more without any limited driving permit and you still have to face the criminal charge of DUI where you could also lose your license with no credit for any suspension time for refusing to take the test.

Some operators of the Intoxilyzer 5000 (the State breath testing device) do not know, or at least do not follow, the correct testing procedures enumerated in the operator's manual. Following these procedures is critical to ensure an accurate test. Ask your attorney if he has a certified copy of the Intoxilyzer 5000 ® Operator's Manual to use against the Intox operator in court.