If you have been arrested for a DUI and complied with the officer’s request for a test of your breath what do you need to know?
To Blow or Not to Blow into the State’s Intoxylizer (Breath Machine)?
First, there is no correct answer to whether or not to submit to an officer’s request for you to provide a breath sample immediately after being arrested for a DUI.
The simple rule of thumb is if you do not blow then you are more likely to have a defendable DUI case, however if you are more concerned with being able to legally drive in Georgia then you should submit to the breath test requested by the officer.
What are the Legal Blood Alcohol Limits in Georgia?
If you decided to blow, for persons arrested over the age of 21 the legal limit .08 blood alcohol content and for persons arrested under the age of 21 the legal limit is .02 blood alcohol content.
Can I be Prosecuted if I Blew Under the Legal Limit?
So it is clear, the State can and regularly does prosecute Defendants for Driving Under the Influence who blow under the legal limit of .08. Generally this is referred to as a DUI less safe charge. Essentially the State of Georgia must establish in court you driving ability was made less safe because of your consumption of alcohol. Persons arrested for a Driving Under the Influence who blow under the legal limit should contact an attorney as soon as possible. As a general rule their cases, as you could guess, are very defendable.
What Should I Do If I Blew Over the Legal Limit?
The first line of defense in any DUI case is looking for a violation of your rights.
Generally these are found in three places: either the cop’s initial encounter with you was not reasonable and illegal, the officers arrest decision was not legal and unsupported by probable cause, and/or your right to have implied consent read, similar to a miranda warning for DUI drivers, was not timely or correctly read to you immediately after you were arrested.
Could There be a Problem With my Breath Test?
When a Defendant, blows over the legal limit there are two main areas of attack: the machine’s operator did not follow his training or the machine itself was not functioning correctly. To learn about the state standards clink this link to the Georgia Bureau of Investigation Implied Consent.
Generally speaking there are three basic safeguards for the intoxilyzer test used to prevent inflated reading.
First, and generally the most commonly not done, the arresting officer per the Georgia Bureau of Investigation is required to complete a twenty minute observation period of someone about to use the intoxilyzer. This is to ensure there has not been contamination from mouth alcohol. Mouth alcohol can loosely be referred to as regurgitated alcohol, a burp increasing alcohol in the mouth, or alcohol from a source other than your lungs. The observation period helps to ensure that the air being tested is alveolar air, air from your deep lungs, and not alcohol that has recently been vomited or burped into your mouth.
Second, the State is required to take two breath samples from you and these samples cannot vary by more than .02. An example of this if your first test is .08 and your second test is a .101. If this is present in your case then the variance in the tests are to great and it is not admissible against you in court.
Third, the machine’s alcohol detector must be operating correctly. The alcohol detector’s name in breath testing literature is a slope detector. Defendant’s have access to the records of the machine they were tested on. If the machine was not functioning as required by the Georgia Bureau of Investigation’s published requirements your jury should be made aware.
Any one of these problems can go to the weight a jury is willing to put on the breath test in your case.
A Special Note of Caution for Under 21 DUI Defendants.
For under 21 one year old drivers who blew near the .02 blood alcohol level there is even more reason to look into the working of the intoxilyzer. The intoxilyzer, the breath machine, is calibrated for a .08 blood alcohol content reading, the lower the test, the higher the margin of error with the test.
Essentially, on tests slightly above the under 21 blood alcohol limit of .02, for example a test showing a blood alcohol content of .03, the intoxilyzer is not as reliable from a scientific standpoint as it is when testing an a driver who blood alcohol content is near or above the adult blood alcohol content limit of .08.
If you are charged with a DUI, contact us today for help 404-373-7735.
