For over two decades, Tom Rowsey has represented individuals in a wide variety of criminal defense matters, with vast experience in the courtroom. Tom is a premier litigator in State, Superior, and Federal Court.
Mortgage Fraud- Juvenile Court
- Embezzlement
- Social Media Law
- DUI Defense
- Felony, Superior Court
- Misdemeanor, State Court
- Drugs
- Domestic Violence
- Vehicular Homicide
- White-Collar Offenses
CRIMINAL DEFENSE FREQUENTLY ASKED QUESTIONS
Q: Should I take the test?
A: The most often asked question in the area of DUI law is also one of the most difficult to answer. Obviously, one of the strongest pieces of evidence the State presents at trial against an individual charged with Driving Under the Influence of Alcohol is the result of a breath test, showing the individual to have been over the legal limit. There is no question that the Prosecutor has a much more difficult job of meeting the State’s burden of proving guilt beyond a reasonable doubt without the assistance of a test result that purports to measure the blood alcohol level of the defendant. So why should anyone ever agree to submit to taking the breath test?
The Department of Driver Services, the agency that issues you your Driver’s License, recognizes that some driver’s may elect not to take a breath test or blood test when requested to do so. Therefore, O.C.G.A § 40-5-67.1 provides: “Georgia law requires you to submit to state administered chemical tests of your blood, breath, urine, or other bodily substances for the purpose of determining if you are under the influence of alcohol or drugs. If you refuse this testing, your Georgia driver’s license or privilege to drive on the highways of this state will be suspended for a minimum period of one year.”
While a minimum one year suspension is not guaranteed, it is certainly a risk factor to consider when deciding on whether to take the test or not.
Furthermore, the State can still obtain a conviction if an individual has refused to blow or otherwise submit to a blood test requested by the arresting police officer. If someone refuses to take the test, Georgia law permits the trial Judge to tell the jury that it may consider the fact of such a refusal to submit to a State administered chemical test as evidence of “consciousness of guilt,” authorizing a conviction for DUI; even so, the chances of a successful DUI defense at trial in front of a jury are likely better if there is not a chemical test in evidence for it to consider.
So, again, why should anyone ever agree to submit to taking the breath test? The answer is not the same for everyone, nor applicable to all circumstances. The truth is that a wide variety of factors ultimately determine the right answer. Only at the conclusion of DUI case is anyone able to look back and determine if the decision made at the time of arrest of whether to take the State Administered Test was a good one.
Q: What is all this about a 10 day Letter?
A: If you were arrested and charged with DUI, then chances are you were also provided a notice by the arresting officer that your Driver’s license will be suspended, unless you request a hearing on the matter within 10 business days from the date of your arrest. The severity of the proposed suspension may vary depending upon your driver history and whether you actually took the test. The bottom line is that you do have to act quickly to make sure and protect your legal rights and avoid an unnecessary suspension of your driving privileges.
Q: An investigating officer typically requests suspects to perform several Field Sobriety tests. Does a suspect have to take all of them?
A: When stopped by the police and questioned about drinking and driving, often times the arresting office will ask a suspected drunk driver to submit to voluntary field sobriety tests and maybe even a hand held breathalyzer test. Ultimately, if the driver is arrested for DUI, the officer will then ask him or her if she is willing to submit to a State Administered Chemical test of their blood, breath or urine.
During the initial stages of police officer’s DUI investigation, the suspected driver is not typically considered under arrest. Therefore, the field sobriety tests, typically the 9 step walk and turn, the one leg stand, and the Horizontal Gaze Nystagmus (HGN, or follow the pen with your eyes exam) are all considered voluntary exercises. A suspect is not required to take them. In fact, you may not be punished for refusing to submit to them.
The hand held breathalyzer falls into the same category: it is a voluntary test. Even the results of this testing device are not considered admissible in a court of law, other than to establish proof that someone has been drinking alcohol. The amount or “reading” indicated by the device is NOT reliable enough to be considered admissible evidence.
These tests requested by the arresting officer prior to a suspect being placed in custody are different from an arresting officer’s request for a suspect to submit to a State Administered Chemical test after being placed under arrest. See FAQ above “Should I take the test?”
Q: The arresting officer did not read me my rights, does that mean anything?
A: Yes, it means something. However, it probably doesn’t mean what you might hope. What you see on television and in the movies whenever someone is arrested the police always read the Defendant their Miranda rights, beginning with “You have the Right to remain silent…”
The purpose of the Miranda rights is to make Defendants, who are already in custody, aware of their constitutional protections. Any evidence the police obtain from a Defendant after being taken into “custody” or otherwise arrested, may not be used unless the Defendant has been made fully aware of his or her rights. The statutory exception that permits the State to use the results of a breath test or blood test pursuant after arresting someone for DUI is O.C.G.A § 40-5-67.1, assuming the advisement is timely and properly given regarding driving privileges and the right to an independent test of your own choosing.
So, certain evidence in your case may not be used by the State against you if it was obtained in violation of your constitutional rights, but determining when you were placed in custody and what evidence may be used against you is determined on a case by case basis.
Thomas C. Rowsey, P.C., Trial Attorney – representing those in the Alpharetta, Johns Creek Sandy Springs, Milton, Marietta, Roswell, and surrounding north side areas of Atlanta in Personal Injury, Divorce and Criminal Defense.