Being an attorney that has a practice heavily focused on DUI defense, I am often asked in social settings: “What should I do if I am stopped and investigated for DUI.”
The answers people get to these questions from defense attorneys vary greatly. My first response when I am asked this always begins with, “First, you shouldn’t be drinking and driving.” However, the reality is, there is no law in the State of Georgia that makes it illegal to drink and drive. It is only illegal to drink and drive if, due to the alcohol you consumed, you are “less safe” to operate your motor vehicle.
Therefore, when I get asked the question posed above, I don’t think it is prudent to answer the question with an advisory opinion, it is better that people understand the repercussions of the decisions that they have available to them on the side of the road and make a decision given their threshold for potential ramifications.
The three decisions that must be made if you are the subject of a DUI investigation are:
- Take field sobriety tests or not.
- Take the State requested breath/blood test or not.
- Ask for an independent test or not.
Standardized field sobriety evaluations (more info about these evaluations will be discussed in a future blog) are tools that an officer can use to help him/her determine if the subject of their investigation is under the influence of alcohol or drugs. Many things can affect the results obtained on these evaluations (environmental, personal, officer proficiency, and subjective interpretation). If an individual submits to these evaluations, the officer will use all the factors of the encounter in making an arrest decision, including the field sobriety evaluations. If these fields are refused by the subject, the officer will be forced to make his/her determination off the limited contact that has occurred, including but not limited to, any physical manifestations of impairment exhibited by the driver. How much information you feel comfortable giving the officer is what dictates this decision.
Once you are under arrest, you will be asked to submit to a test of your blood, breath, urine, or other bodily substance. If you refuse this test, the officer can file paperwork to start the suspension of your license prior to you even going to court. If you take the test, that test will be offered into evidence against you in court.
Whether you have a right to ask for an independent test is determined by whether you took the State’s test. You have no right to your own test if you have refused to take the State requested test. However, if you did take the State’s test, there is no downside to asking for your own independent test other than those results coming back consistent with the State’s test. If that happens it leaves less arguments to be made that the State’s test must be wrong.
Ultimately, I tell people that whatever decision you make at the time of your encounter; that is the right decision. It is very hard to advise people as to what they should do. Only you know how much you had to drink, only you know how coordinated you are, only you know if there are other factors that would impact your ability to perform tests, and every officer has different proficiency levels with DUI detection and enforcement.
Therefore, I say again, it is best not to drink and drive. However, if you do/did, and you are facing a DUI charge, contact our office immediately so that we can assist you in this difficult time.