Can you be too drunk to consent to a breathalyzer test?


GA Drunk Driving Laws - Breathalyzer Consent/>It might sound too crazy to be true, but some Georgia drivers are actually asserting that they were too impaired to consent to a DUI test. In the same way that an individual cannot sign a contract while intoxicated, some criminal defense attorneys suggest that there are serious constitutional grounds for asserting that a drunk driver cannot be required to submit a blood, breath, or urine sample.

Does this defense actually hold up in court? The simple answer is yes. For at least one judge in Gwinnett County, it appears that the implied consent rule for Georgia DUI testing might actually violate a defendant’s 4th Amendment right against unreasonable searches and seizures. The controversial ruling set forth by the Georgia Supreme Court in Williams v Georgia (296 Ga. 817) is finding supporters in courtrooms across the state, like Judge Joseph Iannazonne of Gwinnett County, who decided that the defendant’s blood test results were inadmissible in court.

At its core, the Williams defense is rooted in the basic legal concept of voluntary consent. Essentially, the criminally accused cannot voluntarily waive their rights if they do not give explicit verbal or written consent while of sound body and mind. When Georgia residents are issued a driver’s license, they agree to the state’s implied consent rule, which states that:

any person who operates a motor vehicle upon the highways or elsewhere throughout this state shall be deemed to have given consent, subject to Code Section 40-6-392, to a chemical test or tests of his or her blood, breath, urine, or other bodily substances for the purpose of determining the presence of alcohol or any other drug.”

-GA Code Section 40-5-55

The fundamental flaw in this statute is that the word ‘voluntary’ is nowhere to be found. According to the Williams ruling, there must be at least some degree of voluntary and sober consent from the driver or else the search could be deemed illegal. As we all know, any evidence that is collected from an illegal search is considered tainted and therefore inadmissible in court.

Is a chemical DUI test actually considered a search? According to the US Supreme Court, the answer here is a resounding yes, because the physical integrity of an individual should receive 4th Amendment protection. Any police searches without a warrant (like a DUI test) must have overt approval and consent from the suspect, which means that Georgia’s implied consent rule undermines the very foundation of the 4th Amendment by requiring drivers to unconditionally submit to DUI tests. In a nutshell, the doctrine of implied consent is losing ground to voluntary consent.

Clearly, there is a major discrepancy between the two legal concepts, which has resulted in a headache for state prosecutors, who are now finding that evidence from blood & breath analyses is being suppressed by sympathetic judges. Even when drivers have far exceeded .08 blood alcohol content, the evidence can still be thrown out if the police were seen as pressuring the driver or if the suspect was too inebriated to give consent.

According to some judges, there are countless reasons why an individual may not want to consent to a chemical DUI screening – police officers cannot unreservedly make the decision for you. This also means that non-English speaking drivers may not understand a law enforcement officer’s directions and can therefore also claim that they did not give voluntary consent.

While the results of some chemical DUI tests may be not be used in court, prosecutors can utilize other types of evidence to support the argument that a driver was severely impaired. Dashcam footage from the officer’s vehicle, police reports, field sobriety tests, open containers in the automobile, and other key indicators can provide evidence for the prosecution.

At the same time though, a blood or breath test is considered the gold standard in DUI prosecution. Without this piece of key scientific evidence, it is more difficult for prosecutors to prove that a driver was impaired because their behavior seemed erratic on videotape. Court procedures even prohibit state and county prosecutors from revealing any information to the jury about a lack of chemical evidence.

What does this mean for drivers that might be pulled over for a DUI stop? A conviction for driving under the influence can have serious personal, criminal, and financial ramifications for Georgia drivers. The penalties are indeed harsh for the benefit of public safety measures, but this does not mean that constitutional rights must be voided.

While the best defense against a DUI charge is to just call a taxi, there is no reason that a driver must give consent for an unwarranted blood, urine, or breath sample. A driver’s confusion or ambivalence to the officer’s directions does not mean that they must surrender to a chemical screening. After you retain a legal representative, ask your lawyer if the Williams defense applies to your case.

For more information about changes in Georgia’s implied consent rule or to speak with a DUI attorney, contact The Burnett Firm at 404-630-8599.