Several things happen if you refuse a Breathalyzer in Georgia. To encourage, or rather force, more people to take breath tests, many states, such as neighboring Florida, have refusal-to-consent laws. Refusing a Breathalyzer test is a criminal offense independent of DUI. Georgia doesn’t have such a law as such, but it does have similar ones, such as Section 40-6-391(a)(1). This law prohibits “drive or be in actual physical control of any moving vehicle while under the influence of alcohol to the extent that it is less safe for the person to drive.” Prosecutors could attach these charges to DUIs, especially in refusal cases.
Additionally, the conviction rate plummets. In general, the DUI conviction rate is close to 100 percent for blood tests, about 80 percent for breath tests, and about 60 percent for refusal cases. These matters force prosecutors to rely on the Field Sobriety Tests. The FSTs have a number of flaws, which are outlined below. Weaker evidence often means a more successful resolution, such as a complete dismissal of charges or a plea to a lesser-included offense, such as the aforementioned “DUI junior” law.
Whether you take a breath test or refuse it, you can count on a Marietta criminal defense attorney to work hard and reduce the direct and indirect consequences of a DUI. The direct consequences include long-term court supervision and high fines. The indirect consequences include higher auto insurance rates, three times higher in many cases, along with the professional and social stigma that comes with a DUI conviction.
A DUI arrest triggers the administrative license suspension process. In this area, defendants have basically three choices. They can do nothing and let the entire 12-month suspension period go into effect, they can voluntarily install IIDs (ignition interlock devices) and obtain limited drivers’ licenses, or they can contest the suspension at an administrative hearing.
Typically, choice #1 is always a bad idea. Choice #2 may be a good alternative in some cases. The same thing is true for choice #3.
First, let’s look at choice #2. In many cases, the new IID program is a great option. Most state-licensed drivers over 21 with no prior suspensions or criminal records are eligible for this program. Basically, an IID is a mini-Breathalyzer attached to a vehicle’s ignition. The driver must provide a sample to start the car. The driver must also provide “rolling samples” while the vehicle is in motion. An initial failure, too many rolling refusals, or a rolling failure, disables the ignition.
Once certified mechanics install IIDs, defendants can drive pretty much anywhere at pretty much any time, until their cases are resolved.
Now for the bad news. IIDs are expensive. Mechanics charge for installation, maintenance, monitoring, and the list goes on. Furthermore, IIDs are embarrassing. Anyone who gets in the car knows about the driver’s DUI problem.
There’s another downside as well. Defendants who opt for the IID program waive their right to an administrative hearing. Frequently, a Marietta criminal defense lawyer relies on this hearing to obtain valuable information that’s unavailable elsewhere.
Now, for choice #3. An administrative hearing may be a Marietta criminal defense lawyer’s only chance to cross examine the arresting officer under oath. If the officer makes inconsistent statements later, no matter how slight, an attorney can undermine the officer’s credibility.
There’s a good chance the administrative law judge will let the defendant get a limited drivers’ license. Usually, these licenses allow people to drive for essential purposes, such as to and from school or work. However, there’s no guarantee. The ALJ could just as easily impose the entire 12-month suspension period without any accommodations.
Field Sobriety Tests
The full suspension period automatically takes effect if defendants do nothing, and the FSTs are credible evidence unless a Marietta criminal defense attorney undermines them, as follows:
- Horizontal Gaze Nystagmus: Most people have taken “follow my finger” HGN tests, often at a doctor’s office. Involuntary pupil movements at certain viewing angles mean the subject has nystagmus, a condition that intoxication causes. However, this condition, which is also known as lazy eye, has many other causes as well. Alcohol intoxication isn’t the leading cause. In fact, it’s not even close.
- One Leg Stand: Drunk, sober, or anywhere in between, it’s almost impossible for anyone to stand on one leg for fifteen seconds without swaying at least a little. That’s especially true if the subject is fatigued or has any mobility impairments.
- Heel to Toe Walk: Like the OLS, the HTW is a divided attention test. Scientists claim that intoxicated individuals cannot multitask. They can’t follow instructions and execute them. Also like the OLS, almost no one can walk about thirty steps heel to toe without stumbling or swaying.
Sometimes, police officers also force defendants to take unapproved tests, such as reciting the ABCs. These results are often inadmissible. Excluding the results isn’t enough. A Marietta criminal defense lawyer must also make jurors understand that officers make defendants take such tests, so they’ll be physically and mentally fatigued for the real tests.
Other than the divided attention thing, the HTW and OLS have no scientific basis. Nevertheless, if officers said defendants “failed” these tests, most jurors automatically agreed. Nowadays, when officers make such conclusions, many jurors automatically disagree.
Once a Marietta criminal defense lawyer undermines the FST results, prosecutors must rely on even weaker circumstantial evidence, such as an odor of alcohol and slurred speech. Not surprisingly, the conviction rate in complete refusal cases drops even further, to less than 30 percent.
Breathalyzer test refusal has consequences, good and bad, for your drivers’ license and criminal case. For a free consultation with an experienced Marietta criminal defense attorney, contact The Phillips Law Firm, LLC. We routinely handle matters in Cobb County and nearby jurisdictions.