Blood & Breath Tests
To Blow or Not To Blow, with DUIs that is always the question?
If you are ever stopped for DUI, you will have a choice to make regarding whether or not to submit to the state’s test of your blood alcohol level. There are good reasons to take the test, but there are some good reasons not to. There is no correct answer.
When you are arrested for a DUI there are two separate cases against you. There is the ALS (administrative license suspension) case and the criminal case. Most of us are aware of how things work in a criminal case. The state has to prove to a jury that you did what they say you did beyond a reasonable doubt. The ALS hearing is different and you have to request it.
After your arrest, you will have 10 business days to request an ALS hearing at which point you can challenge the administrative suspension of your license. After the hearing if the administrative judge finds for the arresting officer and against you, if you chose to take the test and this is your first DUI, you may be able to get a provisional permit from Georgia’s Department of Driver’s Services to drive a car the same day.
The ALS case is a civil case. It is a case about your license suspension. If you refuse to take a breath test and the administrative judge finds for your arresting officer you cannot get a permit to drive. The reason for that is that you impliedly agreed to take the test when you got your driver’s license. Georgia courts have found driving to be a privilege and not a right.
If you refused to take the test and your license is lost at the ALS hearing you will not be eligible for a limited permit or early reinstatement of your license. You will lose your license for one year unless the criminal charges are dismissed, reduced, not prosecuted, or you are found not guilty.
If you took the test, there are still ways that the evidence of the test can be challenged. The breathalyzer machine has flaws, and these can be exploited in the criminal case.
There is also the possibility that you might not blow over the legal limit. If you blow over, the legal limit is .08, it will be presumed that you were driving under the influence of alcohol. But even if you don’t blow over the limit, you still can be found to have been a less safe driver, meaning you are guilty of DUI, because of alcohol if the police can show you were not capable of driving your car safely.
The ALS trial is completely separate from your criminal trial. In the criminal trial, the police will have to prove beyond a reasonable doubt that you were driving under the influence. They will have to convince six jurors of this fact and the jury must decide unanimously that you were guilty. This is much harder to do if they don’t have the evidence of the breath test on their side. It is also harder to prove that you were driving under the influence if you refused to take any field sobriety tests. The state can use the fact that you didn’t blow against you at trial, but this fact is not as damaging to your case as a blood alcohol level over the legal limit of .08.
The major issues that you have to weigh in making your decision are how badly you need to be able to drive and how badly you want to fight the criminal prosecution.
If this is your first DUI and you need to have your license for work it is probably better to take the breath test. You will likely be able to get a provisional license immediately after the ALS hearing that would allow you to drive until your criminal trial. However, the result of the test is an additional piece of information that the police can use in the criminal trial against you. It is much easier to convince a jury that you were intoxicated if there is a scientific test in evidence that shows your blood alcohol concentration.
Ultimately, the decision is yours to make, but my advice would be to blow if you have to drive or your life would fall apart without the ability to drive. If you can get by without a car for a year and you are more concerned with fighting your criminal case then not blowing gives you the best odds of being found not guilty of DUI.