Looking only at the Georgia law, it would appear that the answer to this question is “yes.” The Peachtree State has a per se DUI law. If the defendant’s BAC level is above the legal limit, the defendant is intoxicated as a matter of law. Physical symptoms of intoxication, or the lack thereof, are irrelevant. The statistics bear out this conclusion. The conviction rate in test cases is about twice as high as the DUI conviction rate in non-test cases.
However, the test conviction rate is far from 100 percent, even in DUI blood test cases. So, as a practical matter, you are not automatically guilty if you fail a chemical test. These cases are just much easier for the state to prove in court. Some common test defenses are outlined below. Both procedural and substantive defenses are available.
Not all these defenses apply in all cases. So, if you were charged with DUI, an effective Marietta criminal defense attorney needs to review your case. An experienced lawyer not only identifies any available defenses. A good Marietta criminal defense attorney also knows how to leverage these defenses, both in court and during pretrial negotiation sessions. These skills usually guarantee the best possible result under the circumstances.
To Submit or Not to Submit
Before we look at some chemical test defenses, let’s examine this vexing question. There are powerful arguments on both sides.
There is an old saying that if you want to get out of a hole, you must first stop digging it deeper. You have the right to refuse a chemical test. But there are consequences if you assert this right, and pretty much all these consequences are bad.
Initially, the drivers’ license suspension period for a chemical test refusal is considerably higher than the suspension period for a chemical test failure. Moreover, if you refuse to provide a chemical sample, prosecutors can use that refusal against you in court. Many jurors assume that, if the defendant didn’t take a test, the defendant had something to hide.
Additionally, as a practical matter, many police officers take these refusals personally. If the defendant is uncooperative, at least from their perspective, they often go out of their way to make the experience an especially difficult one. As we have all seen recently, once things start going sideways during a police stop, the situation can end very badly for everyone concerned.
Now, for the other side of the coin. As mentioned, the chemical test conviction rate is much higher than the non-test conviction rate. So, if you take a test, you might essentially be giving the state the proof it needs to convict you. Trust us when we say that county prosecutors are very skilled lawyers. They can easily obtain a conviction without your help.
The possible penalty might be the tie breaker. In some states, such as neighboring Florida, refusal to submit to a chemical test is a separate criminal charge that’s almost as serious as DUI. So, your refusal has additional consequences. But Georgia only has an administrative license suspension penalty. So, we usually advise people to refuse a test unless they have not had a single sip of alcohol in the last twenty-four hours.
Probable Cause Issues
Legally, officers must have probable cause to demand a test before any of the aforementioned dire effects kick in. Physical symptoms, like bloodshot eyes or slurred speech, usually do not constitute probable cause. At best, such evidence proves that the defendant had been drinking. In some cases, like an odor of alcohol, the evidence only establishes that someone in the car had been drinking.
Instead, the Field Sobriety Test results usually support probable cause. The three-test battery is the walk and turn (a/k/a walking a straight line), the DUI eye test, and the one-leg stand. Unapproved test results, like poor performance on the finger-to-nose test, usually don’t hold up in court.
These tests are quite subjective. Officers always testify that the defendant “failed” the test. Sometimes, officers base that grade on minor technicalities, like starting the walk and turn with the wrong foot or holding up the wrong leg during the one-leg stand.
Such conclusions might not convince jurors that the defendant is guilty. But they are enough to convince a judge that officers had probable cause to demand test submission. Probable cause is a much lower standard than beyond a reasonable doubt.
However, sometimes officers skip the field sobriety tests for some reason, or defendants refuse to perform them. If that’s the case and the state must rely on things like bloodshot eyes, establishing probable cause could be difficult.
Chemical Test Weaknesses
In court, police officer Breathalyzer technicians portray this gadget as a modern marvel. However, the Breathalyzer is nothing more than an updated version of the Drunk-O-Meter, which was invented way back in 1931.
This gadget was cutting edge science during the Great Depression. But like all scientific instruments of that era, it had some significant flaws. Its great-grandson, the Breathalyzer, has some of these same shortcomings.
Ketones, such as acetoacetate, beta-hydroxybutyrate, and acetone, are a good example. Many people, such as diabetics, certain dieters, and most smokers, have naturally high ketone levels. Breathalyzers classify ketones as ethanol. So, there is a good chance that the Breathalyzer’s BAC estimate is artificially high.
To highlight such deficiencies to jurors, Marietta criminal defense lawyers often partner with degreed chemists. These individuals usually have much more scientific credibility that the police technician the prosecutor uses as an “expert.”
Blood test are more sophisticated and thus more difficult to challenge. However, they are not infallible. Frequently, attorneys order independent laboratory reviews. A fully qualified chemist often obtains very different results from the ones police technicians claim they found.
These issues usually don’t come up that often. Very few DUIs involve blood tests. Police officers must have search warrants to administer them. Most officers only bother with warrants on a no-refusal weekend or another high enforcement period.
Test or no test, prosecutors must establish all the elements of DUI beyond a reasonable doubt. For a free consultation with an experienced criminal defense attorney in Marietta, contact the Phillips Law Firm, LLC. We routinely handle matters in Cobb County and nearby jurisdictions.