Every state, including Georgia has an Implied Consent Law. Under this law, any person with a Georgia driver’s license has given their consent to take a chemical test if suspected of driving under the influence of drugs and/or alcohol. There are three chemical tests, blood, breath and urine and of the three, blood is considered to be the most reliable. A chemical test determines a person’s blood alcohol content and a blood test can measure any drugs or alcohol found in a person’s system.
Since there are health risks that are associated with testing blood, police cannot administer a blood test. It must be done at a qualified medical center and given by the correct medial personnel. There are many rules and regulations put into place in regards to how your blood should be drawn, transported and analyzed due to all the things that could go wrong with your sample.
DUI blood tests cannot be given at the side of the road. That is why the most common test used for DUI arrests is a DUI breath test, by more than a 10 to 1 margin. Some states REQUIRE that a DUI alcohol suspect be offered a breath test, and not a DUI blood test, if he or she is conscious. Other states permit the officer in the field to choose which kind of test or tests are to be administered, whether the person is conscious or not.
The preferred method of blood analysis is a process called gas chromatography or GC. This testing method utilizes a measuring technique of comparison of a known standard to the subject’s sample. These standards are typically certified pre-mix solutions, which have been tested and re-tested for being accurate and reliable markers for the GC device.
Furthermore, the laboratory will usually run a quick series of immunoassay tests on a different device BEFORE running the time-consuming GC-MS tests. These immunoassay tests are looking for common drugs of abuse, such as opiates, cannabinoids (marijuana), sedatives, pain killers, etc. If these immunoassay tests come back NEGATIVE, the lab will usually report that the sample did not have any type of drugs in it. If any class of drugs shows POSITIVE, the GC-MS will be set up to look for common drugs in that class (e.g., sedatives) in the blood sample.
Refusing a Test
The officer if he or she suspects any type of drug use, prescription or otherwise, or alcohol, they do not care and they have probable cause to make an arrest for that they are going to request a blood test. In Georgia, you can say no. They have to then get a warrant for the blood that has to be signed by a judge and must be authorized by a court and those are sometimes subject to challenge because they make errors trying to get them. Once the warrant is in hand, the officer will take you to a hospital or the police station—depending on the jurisdiction—where your blood will be drawn.
One of the usual requirements of the DUI implied consent law is that you have the right to obtain an independent test of your blood, breath, or urine taken after you submit to the State-administered test. This sample can be tested independently by a laboratory of your choice (and at your expense) in order to permit you to challenge the State’s blood test result that will be used against you at trial.
In the state of Georgia every person who submits to testing, that is the official test at the police station, is entitled at the end of that test to say, “I would like an independent test of my blood, breath, urine or all three.” The officer then has to reasonably accommodate you. That means they have to take you there. They need to reasonably accommodate you and they should. If they do not, then their test can be thrown out.
Under these guidelines, an officer must do all of the following things if a driver requests an independent blood test:
- Provide a phone book or Internet access so that you can locate a testing facility
- Drive you to the selected location (within 50 miles of the police station)
- Stop at an ATM for you to withdraw any cash needed to cover the cost of the test
Seeking the Advice of an Attorney
Only a qualified DUI defense attorney familiar with the proper proceedings of blood test results will be able to properly defend you. Your attorney may find that your blood sample was tainted or that the results were not analyzed correctly. If any of these kinds of mistakes occur, your attorney may call for your blood test results to be inadmissible in court. And this could severely damage the prosecution’s case against you.
Even if your blood test results are accurate, your defense attorney can still build a defense. From plea bargains to having your charges reduced, only a DUI defense attorney can fight for your rights. Remember, if you are arrested for DUI to contact an attorney immediately. The more time you give your attorney to prepare the better. This leaves them more time to go over your blood test results and carefully scrutinize the findings.
Building a Defense
At each point in the prosecutor’s offer of proof that the blood test was properly collected, stored, refrigerated and tracked (as it goes in and out of the laboratory’s refrigeration units), your defense attorney will be challenging the completeness of the State’s record-keeping and the scientific propriety of each step.
First, blood tests are rare. The police officers don’t know how to deal with them. There are certain procedures they’re supposed to follow and there are several people involved in that chain of command that can always create reasonable doubt in cases.
Many times these blood tests are not transported immediately and they can deteriorate and when blood breaks down through decomposition one of the byproducts of that the decomposition is alcohol. It makes alcohol. It can add to your reading.
The other thing is that getting all those people to court so that they can verify the blood results sometimes just doesn’t happen. Or the GBI won’t turn over all the paperwork that’s needed that we’ve requested in discovery, and we can have the judge say, “Blood test is out.”