Tag Archives: administrative license suspension

New Advice on Whether to “Take the Test” After DUI Arrest

For many years, I have advised people to “refuse” to take a State blood, breath or urine test after arrest if they thought they might register above the legal limit of .08.  Now, due to changing conditions, we must rethink that position.

Georgia law says that if you are arrested for DUI, you are “required” to take a test of your blood, breath, urine, or other bodily substance. However, you do have the right to “refuse” to take such test(s). If you take the test(s), you have a right to an independent test of blood, breath, urine, or “other bodily substance.”

should you take test after dui arrest

The question of whether to take a state test after arrest has always been a troublesome one. On one hand, Georgia law says that when you “refuse” to take a test, your license could be suspended for a full year. That is known as an administrative license suspension (ALS) and must be initiated by the arresting officer.   So, if you could get past the license hearing, you had done yourself a favor by not providing the State with your blood alcohol level.

The problem is, we are seeing more and more cops showing up for the ALS hearing and insisting that our clients sign an agreement whereby the client agrees to plead guilty to the DUI, and the cop then agrees to withdraw any one year suspension.  These agreements, under a recent Georgia case, can now be admitted into evidence against you, if you decide to go back on the agreement and fight the DUI.

Georgia law says that if you refuse testing, then “NO TEST SHALL BE GIVEN.” However, the legislature changed the license law a few years ago to add that nothing in the law would prevent a police officer from “obtaining evidence by other means”.  Recently, some police agencies have started obtaining search warrants to forcibly draw a person’s blood if that person has refused to agree to a State breath or blood test. Not only that, but these officers are also seeking a one year license suspension even after obtaining the suspect’s blood!

While there are currently legal actions arguing that a person or driver’s rights are violated by these forced blood draws, we must take another look at our options when deciding whether to take the test or not.

If you refuse to take the test, not only are you subject to losing your license for a full year with no permit, you may also have your blood drawn, with the results able to be used against you.

Once you do take the designated State tests, you are entitled to an independent test of your own choosing of your blood, breath, urine, or other bodily substances . Once you request an independent test of your choosing, the officer must “reasonably accommodate your request, or otherwise the State test cannot be used against you.  As I am not aware as to whether the State is capable of testing “other bodily substances” for blood alcohol level, you might consider requesting an independent test of a bodily substance other than blood, breath or urine.

I would suggest you specifically request a test of either hair or saliva. Then, the burden shifts to the officer to reasonably accommodate your request. For more information, contact me, Mickey Roberts. Be sure to follow me on FacebookTwitter, and Google+ for Georgia law updates and news.

How does DUI affect commercial drivers license

If you have a commercial drivers license, you should NEVER drink then drive. Why not?  Because of the severe consequences a DUI conviction has on your ability to drive a commercial vehicle.

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Should DUI cops have to follow the law?

There is a firestorm brewing in Georgia over what is commonly called an “Administrative license suspension hearing”. In Georgia, the State can try to suspend your license before you are convicted of a DUI; the process for this to happen is that an officer signs a sworn document, swearing under oath that he/she arrested you for DUI and you either registered above a .08 or you refused the test. Apparently, cops have been filing these sworn reports without actually swearing in front of a notary; this is the same as not swearing under oath at all.  A few of my fellow DUI defense lawyers have successfully obtained restraining orders, keeping the State from moving forward in these cases until they can prove that they followed the law.  The Georgia Appellate Courts have routinely allowed the police leeway in not following the Constitution or Georgia laws when DUI arrests are involved, from not having to tell a person that all field tests are voluntary, to not having to follow rules in administering the State Breath test machine used to convict people of DUI. Perhaps now the pendulum is swinging back to at least middle ground… the cynic in me bets NOT!

Case of the Month June 2010

I won 2 DUI cases in the month of June; neither of them actually went to trial. How did I win?

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Georgia requires payment for license hearings

Effective May 13, 2010, Georgia requires a licensee to pay a filing fee of $150 to request a hearing on any administrative license issue. In Georgia, a licensee’s license can be suspended if arrested for DUI, and either registering above the legal limit, OR if refusing the State chemical test.

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The above information is intended to help educate members of the Georgia motoring public as to their rights under the law and to assist presumptively innocent citizens in properly asserting those rights. Information within this site should not be misconstrued as legal advice.
administrative license suspension