When facing driving under the influence (DUI) charges, there are many different things that could have happened, including a refusal to submit to a breath, blood, or urine test at the time of arrest. Although Georgia has an implied consent law, where a person can have a license suspended for a year or more for refusing to submit to the test, there are defenses available to this refusal, including the following:
- The arresting officer failed to read the Implied Consent Notice – There are different notices depending on whether the driver is over 21, under 21, or a commercial driver. The police officer must have provided the appropriate message before requesting that the driver submit to the test. If he failed to provide this notice, then the refusal may not be used as a basis for the suspension of a license;
- The arresting officer did not place the driver under arrest before reading the Implied Consent Notice – Unless it is not possible because the driver has been injured or there is some other compelling reason that prevents placing the driver under arrest, the arrest must take place before the notice is read;
- The arresting officer must not take shortcuts – the notice must be read in its entirety and not presented in a shortened form. If it is not, the officer has not provided sufficient information for the driver to make an informed consent;
- There must be a provision of notice for each test – the arresting officer has the right to determine the type of test to which a driver must submit, such as a breath test or blood test, but if the officer asks the driver to take a breath test at the scene and then asks the driver to submit to a urine test, the notice must be read again. A driver is deemed to have refused a test if he requests a different test than the one to which the officer asked him to submit;
- The driver did not understand the notice – if a person does not understand English and the officer did not make any attempt to provide the notice in a way the person could understand, then the person may not be found to have refused consent. In addition, if a person is in a physical state where he could not understand the notice, such as incapacitated after an accident, then it is possible to argue that there was no refusal;
- The officer provided misleading information – there are times when an officer may make statements such as taking the test is the best way to get released from custody; or
- The driver rescinded his refusal – if the driver changes his mind quickly and requests to submit to the test, then this may negate the initial refusal. The driver must be clear about the rescission and do so quickly after the initial refusal, where the delay would not have resulted in any substantial difference in test results.
A refusal to submit to a chemical test does not mean that there is no evidence to prosecute a driving under the influence case. The refusal itself can be introduced as evidence that the driver was under the influence and was aware of the legal implications of his blood alcohol content (BAC). However, there are many ways to fight against this evidence, with the help of a skilled and tenacious criminal defense attorney.
The Abt Law Firm, LLC. Aggressively Fights for its Clients
There are times when embarrassment leads a person to try to defend himself against criminal charges. While this never is a good idea, it particularly is a bad decision when facing DUI charges. There are many strong defenses that can keep a person out of jail and on the road. The Atlanta Criminal Defense Firm of the Abt Law Firm, LLC. knows how the prosecution works and can counter the aggressive tactics. If you do not want a criminal record, call us immediately at 1 (800) NO JAIL 9 or 1 (800) 665-2459 and we can help. We offer free consultations and are ready to come to you in jail.