The Consequences Of Refusing The Breathalyzer Test When Arrested For A DUI Near Forest Park, Georgia
In this article, you will discover:
- The consequences for refusing to take a breathalyzer test
- General information surrounding the administrative license hearing
There are two types of possible breath tests that you can take. One is the pre-arrest, handheld breath test called the portable breath test or PBT. You can refuse the portable breath test without consequence. The Georgia constitution, much like the federal constitution, has a right not to incriminate yourself. Under the federal constitution, that only applies to words. So, if you’re arrested, and they have to read you the Miranda Rights, you have a right not to talk to the police. In Georgia, the right not to incriminate yourself takes the traditional interpretation of incrimination and protects you from compelled testimony, words, or compelled acts. The Georgia constitution protects you from having to blow, and if you refuse, it can’t be used against you. So, you can refuse a breath test with impunity in Georgia, and they can’t use it against you.
If you are arrested for a DUI, you can also refuse a breath test and a urine test under the Georgia constitution, and the court can’t use it against you. However, blood tests are not considered compelled acts that you can legally refuse without being used against you but are considered a search that can be used against you by the courts, at least for now. If you refuse a blood test, that can currently be used against you at trial. Still, if you refuse a breath test because you have to blow a consistent volume for a specific minimum period of time, that’s considered a compelled act, and they can’t force you to do that or use it against you if you refuse. Urine tests are also considered compelled acts.
Everything You Need To Know About The Administrative License Hearing In Georgia
An administrative license suspension hearing is triggered by a Department of Driver Services Form 1205. It’s an 8.5 x11 inch yellow sheet of paper that says, “Georgia Department of Driver Services” at the top with their address. Then it has some information like your name and address, the police officer’s name and address, and then the breath test results are written in the bottom left-hand corner of the grid, blood tests are usually denoted as “pending” or in the case of a refusal, they’ll write “Refused” or “REF” if you refused. Then, it has five spaces for other options in the middle of the page. Below that, it says, “Intent to suspend your license after 46 days and temporary driving permit for 45 days”. And so if you turn that document over, it says, “You have 30 days to request a hearing and appeal your administrative license suspension”. So, if you do nothing when you get a DUI and get the Department of Driver Services Form 1205, you’ll lose your license in 46 days, either for a year for refusing or for 30 days for taking a test and testing over the limit on a first DUI.
If you send in a hearing request, you’ll have a hearing with the driver’s license court. This is a civil, administrative court, so the burden is not proof of guilt beyond a reasonable doubt like in criminal court. The burden is by a preponderance of the evidence. The issues are: were there reasonable grounds to arrest you for a DUI, did the police officers read the appropriate rights, did you register over 0.08 grams of alcohol or more? If you refused the post arrest test, then the issues are were there reasonable grounds to arrest you for DUI, and did you refuse? It is important to understand a refusal can come in many forms. Failure to answer, answers other than yes or no, asking for a lawyer, and not understanding all can be considered refusing for purposes of the administrative license suspension hearing.
If you lose after a driver’s license hearing, it’s a 30-day suspension for a first DUI, but you’re eligible for a limited permit. If it’s a refusal, it’s a one-year suspension, which usually comes two or three days after the driver’s license court hearing is concluded. Typically, these driver’s license court hearings will occur within 60 to 90 days after arrest, sometimes before your criminal case even occurs. If you haven’t been to your driver’s license hearing and you plead guilty to DUI, you can’t get a limited permit until you have your driver’s license hearing case resolved in the administrative court. So, you don’t want to plead guilty to DUI before your driver’s license hearing court case is settled, or you’re not going to be able to get a permit even if you’re eligible for a permit. There are many pitfalls in a DUI arrest and dealing with driver’s license issues, so it’s imperative that you have an attorney guide you through those traps and potential risks for getting arrested for a DUI.