Several months after the Supreme Court ruled that DUI arrest procedures violated the state’s constitution, the legislature changed the procedures.
In February 2019, the state’s highest court ruled that, under Georgia’s self-incrimination law, refusal to take a chemical test cannot be used against a defendant at trial. So, going forward, Georgia peace officers will no longer tell people that test refusal could come up in court. If defendants refuse to blow into a Breathalyzer, peace officers will hold them until a judge approves a search warrant which allows a blood draw.
“If you’re DUI on the streets, you’re going to be taken off the streets, you’re going to go to jail,” explained Waynesboro Police Chief Lewis Blanchard. “We are going to do whatever we have to do to get you convicted under the law,” he added.
Self-Incrimination Rights in Georgia
In the Peachtree State, the right against self-incrimination is very broad. For example, at trial, prosecutors cannot comment on a defendant’s refusal to testify.
The same thing applies during the arrest stage. Your right to remain silent is not absolute. Everyone must answer basic identification questions and also produce certain documents upon request, like a drivers’ license. But for the most part, your refusal to answer questions and cooperate cannot be used against you in court. That extends to your refusal to take a breath test.
It’s very important to assert your right to remain silent at this point. The more things you say and do, the more evidence the prosecutor will have against you at trial. Yet many people think they can “talk their way out of an arrest.” That’s probably not going to happen. Once you see flashing lights in the rearview mirror, an arrest is usually inevitable.
Challenging Breathalyzer Results in Court
In the late 1990s, most states, including Georgia, rewrote their DUI laws. Before the rewrites, people with BAC levels above the legal limit were presumptively intoxicated. But when per se laws came along, these individuals were intoxicated as a matter of law.
So, if a defendant provides a chemical sample, a Marietta defense attorney must prove that the sample was invalid for some reason. That’s basically the only defense, and that’s also the main reason the test case conviction rate is above 80 percent in most jurisdictions.
When police technicians talk about Breathalyzers in court, they dazzle the jury with tales of fuel cells and electrochemical reactions. Such testimony makes the Breathalyzer sound like a sophisticated piece of technology. But in reality, the Breathalyzer is very much like the Drunk-o-Meter from the 1950s. Its results are based on chemical breath changes.
In other words, the Breathalyzer measures breath alcohol level, and then uses it to estimate blood alcohol level. That extra step creates possible flaws, such as:
- Unabsorbed Alcohol: The body does not absorb alcohol very quickly. Most alcohol goes from the stomach through the liver and into the blood. So, if the defendant had been drinking in the hour or so before the test, the Breathalyzer BAC estimate may be artificially high.
- Mouth Alcohol: This gap is probably the Breathalyzer’s most serious flaw. If the defendant burps or belches in the fifteen minutes before the test, the extra mouth alcohol skews the results. Technically, Georgia law requires a monitoring period before the test. But courts have watered this requirement down so much that it basically never takes place. So, there’s no way to tell if the mouth had extra alcohol or not.
- Acetone: Diabetics, smokers, and some other people have abnormally high blood acetone levels. Acetone is basically an enzyme that breaks down food. Since Breathalyzers register acetone as ethanol, these people may have higher-than-normal BAC estimated levels.
To drive these flaws home with the jury, especially in a .08 or other borderline BAC test, many Marietta DUI lawyers partner with degreed chemists. These experts usually outshine the Breathalyzer techs and other “experts” the Cobb County prosecutors rely on.
Circumstantial Evidence DUI Cases in Cobb County
Since law enforcement officers no longer tell defendants that a test refusal could be used against them, the refusal rate may go up. Most people have seen crime shows on movies and TV. So, they naturally assume that a test refusal will not be used against them.
In non-test cases, the DUI conviction rate plummets to about 40 percent, in many jurisdictions. Without a chemical test, prosecutors must use circumstantial evidence to prove loss of normal use of mental and physical faculties.
To establish such loss, Cobb County prosecutors typically rely on the three approved field sobriety tests. Sometimes, they try to sneak in other ones, like the Romberg balance test (the tilt-your-head-back test). But unapproved test results are usually only admissible for limited purposes. The three approved tests are:
- Horizontal Gaze Nystagmus: Most people have taken an HGN test at a doctor’s office. Test subjects follow points with their eyes without moving their heads. If their pupils move involuntarily, they probably have nystagmus, which is also known as lazy eye. That much is true. But alcohol is not the only cause of nystagmus. In fact, it’s not even the leading cause.
- Walk and Turn: This sobriety test, which is also called the heel-to-toe walk (HTW), is often flawed from the start. Officers often require defendants to walk heel-to-toe across an imaginary line on a slightly uneven surface. That’s an almost impossible task whether you are drunk or sober.
- One Leg Stand: Officers often testify that defendants “failed” this test because of technicalities, like a slightly imperceptible sway when raising or lowering the leg or holding the leg at a slightly incorrect angle. But the jury determines whether the defendant “passed” or “failed” the test, and their conclusion is the only one that counts.
The FSTs work very well in conjunction with a chemical test, because the FSTs provide excellent probable cause evidence. But they simply are not convincing beyond a reasonable doubt.
Connect with a Passionate Lawyer
Changing laws may affect chemical DUI tests. For a free consultation with an experienced criminal defense attorney in Marietta, contact The Phillips Law Firm, LLC. Our main office is conveniently located in downtown Marietta.