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Do I Have the Right to Refuse a DUI Test in Georgia?


While the answer to "do I have the right to refuse a DUI test in Georgia" is yes, it may not be as simple as you might think. That is because Georgia law classifies different tests and your right to refuse them differently, and cops are not required to fully inform you of your right to refuse certain testing or to further explain the implications of taking a test under implied consent law. This article will lay out the different tests in Georgia and explain the consequences of refusing to cooperate. If you have been arrested for DUI and charged with a refusal DUI, give us a call after reading this, as your situation is particularly urgent.

The Right to Refuse Field Sobriety Testing

In Georgia, a standard battery of three field sobriety tests are used in a DUI investigation. The three tests, the HGN (eye test), Walk and Turn, and One Leg Stand, are NHTSA approved tests that rely on studies dating as far back as the 1980s. Virtually all cops are trained on administering NHTSAs tests, and will have you perform them if youre being investigated for DUI.

Under Georgia law, you are not in usually in custody when stopped in a vehicle and asked to step out to speak with the officer. Unless the cop does something unusual and blunt, like cuff you up, or tell you that youre under arrest immediately, chances are a judge will find that you speaking to the cop was voluntary, leaving you with few protections under the law. During the "voluntairy" encounter, cops will usually ask you to take some field tests. Actually, most of what I hear in reviewing DUI cases is:

  1. "Common over here if you don't mind and Im going to test your eyes."
  2. "You don't mind taking some field tests do you?"
  3. "I just need to make sure you are safe to drive, so if you would…"
  4. "Do me a favor and…"

Of course, the above-suggestions are hardly designed to inform you of your right to refuse to take any tests, but judges say that's OK in Georgia. You are just supposed to know that you are free to decline testing and ask the cop to move on…

If you do actually refuse to take these pre-arrest field sobriety tests, the prosecutor should not be able to argue to the jury that you refused because you were drunk, however, the fact you refused will certainly be heard by the judge or jury and they can infer from it what they want. Of course, we always ask for a jury instruction in trial that states that no one can be compelled to take these tests in Georgia and that you do have the right to refuse them.

The Right to Refuse Implied Consent Testing

Once you've been arrested for DUI in Georgia, cops are trained to read you implied consent warnings, which basically say you must take a test of the cop's choice, but do have the right to refuse. Wait, what? I know. You must take a test, but can refuse.

In reality, Georgia's implied consent test is horribly worded and seemingly contradictory, but again, courts have held it's OK. So, after a cop reads you implied consent and asks for a "yes" or "no," you must give them your answer. If you submit to testing, then you are facing a license suspension if you test over the limit. If you refuse testing, you are definitely facing a harsher suspension (on a first DUI) and will likely be 12 months without a license or even permit.

Recently, Georgia's higher courts have at least made the analysis of implied consent not so black and white, which has courts looking harder into the voluntariness of someone's "consent" or "refusal." However, all in all, implied consent is still the law of the land in Georgia and forces drivers to make an on the spot decision that can have lasting effects on their license and record. If you refuse to take a breath or blood test under implied consent law, that can be brought up in trial and exploited by the prosecutor as evidence the result would have shown what the cop claims. If you test over the limit, 10 out of 10 prosecutors will tell you that you've made their case much easier to prove. Sadly, 9 of 10 defense lawyers will tell you that you must plead guilty to the DUI.

How Zeliff | Watson Does it Differently

At Zeliff|Watson, our team of defense attorneys knows the ins and outs of DUI law, and are truly DUI practitioners. No case is black and white, and we have won- both in negotiations and at trial- many cases where our client should have pleaded to a DUI—at least according to other attorneys. While it is certainly our obligation to fully discuss your case and the potential ramifications of decisions with you, we also push hard in 100% of our cases for the best outcome.

If you are confused about whether you had to take a test or how an implied consent test in a DUI will affect you and your case, give us a call today. We can be reached at (770) 676-1340.

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