Challenging a DUI Breath Test in Georgia

In Georgia, if you are found driving with a blood alcohol level of .08% or higher, you can be charged with DUI per se. This is a different type of DUI than a DUI less safe. In a less safe DUI case, the prosecution has to show that you had enough alcohol in your system to make you a less safe driver than you would have been without alcohol. This is usually alleged by showing that someone was involved in an accident, was driving erratically, or was doing something while driving that clearly demonstrated that he or she was “less safe” than a reasonable, sober person behind the wheel.

DUI Less Safe vs. DUI Per Se

There is a different burden of proof in a DUI per se case. All the prosecution has to show in this type of DUI is that your blood alcohol level was .08% or higher.  However, in order to do that, they will need to get a sample of your blood, breath, urine, or another bodily substance. Most often, they will choose to make you do a breath test on the Intoxilyzer machine, which is different from the hand-held machine that officers use at the scene.

It is worth noting that you do not have to perform the breath test. If you choose not to take the test, then your license will be suspended as a matter of law. However, it may give the police less evidence to use against you, so I usually recommend refusing the breath test altogether.

Challenging Breath Alcohol Test Results in Court

If you do submit to a breath test and the results indicate a blood alcohol level of .08% or higher, challenging the results will be very difficult. However, there are ways to attack it, and I routinely make these arguments in DUI cases. The following are a few ways to contest the results of a breath test in court:

1) Argue that the Intoxilyzer was not properly functioning at the time of the test. I keep the machine’s operation manual in my office, and in every DUI per se case, I request the police department’s records to see if the machine was properly calibrated and tested and whether the officer using it was properly trained in its operation.

2) Argue that residual mouth alcohol caused the test results to be inaccurate. If you had been drinking alcohol shortly before you were arrested, then some of that alcohol may be present in your mouth but not in your bloodstream. Therefore, a breath test would show an inexact and exaggerated blood alcohol content, because it would register the alcohol residue that is in your mouth.

3) Argue that you did not know that you had the right to refuse the breath test. By law, officers have to read you the Implied Consent warning prior to requesting you to take the breath test. This warning makes it clear that you have a choice of whether or not to do the breath test. However, many officers will basically tell you that you have to submit to it or try to pressure you into taking the test. If you did not know you could refuse the test or your felt coerced into doing it, then the results can be dismissed.

More about DUI in Georgia

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