By: Cory E. Yager, Ex-Police Officer and Atlanta DUI Lawyer
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, alcohol, or both. 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. The amount of alcohol or the presence of marijuana or drugs in the blood test can support a DUI “per se” alcohol or drug prosecution.
Three types of chemical tests may be used. Usually, a breath test is used for DUI-alcohol cases. A blood test is used for DUI-drugs cases. A urine test may be collected for the presence of weed or drugs, too. Of the three, blood testing is the most reliable. These days, due to issues with implied consent law and breath alcohol testing, a BAC blood test is highly common for a DUI in Georgia. Law enforcement in Georgia is being taught that an alcohol blood test may be upheld when the breathalyzer test will not.
Since health risks exist in associated with testing blood, police cannot administer a blood test without CONSENT from you or a judicial search warrant. The blood collection made for a DUI offense should be done at a qualified medical center and undertaken by the correct medical personnel. Under OCGA 40-6-392, many Georgia rules and regulations are put into place regarding how your blood should be drawn, transported, and analyzed, due to all the things that could go wrong with your sample.
Blood Test Process After a Georgia DUI Arrest
DUI blood tests cannot be given at the side of the road, which 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 is 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 most common 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-mixed 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, painkillers, etc. If these immunoassay tests come back NEGATIVE, the lab will usually report that the sample did not have any 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 Under the Georgia Implied Consent Law
The officer, if he or she suspects any drug use, prescription or otherwise, or alcohol, they have probable cause to make a DUI Georgia arrest and are going to request a blood test. In Georgia, you can say no to the test. This DUI refusal triggers an implied consent violation and pending license suspension, which you will have 30 days to file a DDS appeal or install an interlock device if you are an eligible motorist. Then, the arresting officer must get a warrant for the blood which has to be signed by a judge and must be authorized by a court.
Georgia DUI laws control the propriety of this process, and the test results are sometimes subject to challenge because police, the judge, or blood collection personnel make errors trying to get the results. 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 and packaged inside an evidence box for later delivery to the GBI.
The Importance of Obtaining Independent Tests
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) 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 to say, at the end of the test, “I would like an independent test of my blood, breath, urine, or all three.” The officer then must reasonably accommodate you. That means the police officer must take you to get the independent test. If they do not accommodate you, the state-administered blood 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
Building a Defense to Driving Under the Influence
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 specific procedures police are supposed to follow, and there are several people involved in that specific 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 the decay is alcohol, which 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 doesn’t happen. Or, the GBI won’t turn over all the paperwork that’s needed, which we’ve requested in discovery, and our DUI lawyers near me can have the judge say, “the blood test is out.” This test being out means the jury will never know about you submitting to a blood test.
Seeking the Advice of an Atlanta DUI Attorney
Only a qualified DUI defense attorney familiar with the proper proceedings of blood test results will be able to properly defend you. Call our law office at 404-567-5515 for a FREE consultation with a PARTNER, not an associate. Our criminal defense attorney Atlanta partners can answer questions about DUI schools, alcohol and drug screening, and a host of other issues. When calling law firms near me, our 24-hour DUI lawyers can help answer questions.
Our criminal attorneys (Larry Kohn, William C. “Bubba” Head, and Cory Yager) may find that your blood was illegally obtained, or that the search warrant is defective, or that the sample was tainted. In some cases, our criminal law attorneys have discovered that the results were not analyzed correctly, or that the 3-hour rule was not met, whereby the state cannot prove the DUI blood test time limit.
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