Many persons charged will at first refuse the State’s breath but later either on their own decision or at the request of the officer rescind their refusal and “consent” to the Officer’s search of your breath.
In cases where you feel the officer badgered or convinced you unfairly to change your mind and you submitted to the breath or blood test it is important to know the standard the Judge will be reviewing your case by in court. The judge will evaluate whether the officer’s procedure utilized by the officer in attempting to persuade you to rescind your refusal was fair and reasonable.
Your trial judge alone will decide if what transpired between you and the officer was fair and reasonable. If the Officer made claims that were untrue or promises that you could go home if you cooperated you should alert your attorney as soon as possible.
Think of your implied consent rescission this way, was the interaction between you and the Officer completely fair and you truly wanted to take the test or did the arresting officer play on your emotions to get you to make a decision different than you wanted.
Most people charged with Driving Under the Influence when their blood alcohol level is over the State’s legal limit of 0.08 never learn that the law requires the prosecutor to show the breath or blood sample provided was taken within three hours of driving the car.
When is this important, always, but it is most important when a DUI case is atypical, specifically when there has been a delay between police involvement and the test of a person’s breath or blood.
An example, a client of ours was in a wreck at two a.m. in a part of town where the DUI task force does not patrol. EMS, the fire department, and the Atlanta Police arrived. It took the Officer nearly the entire three hours, almost to the minute, to get our driver, who wrecked her car, to the Georgia Tech Police Department for testing. Our client did take the Officer’s test and blew over the limit, but the officer was not able to show evidence that she had driven the car within the three hours prior to the test.
It was unclear how long it took for the police to arrive at the scene. As you can imagine this was a large factor in the outcome once we brought her case to court.
Simply put the law in not driving over the legal limit, it is driving and within three hours having a blood alcohol content over the legal limit!