Driving Under the Influence or Driving While Intoxicated (DWI) or Driving with Unlawful Blood Alcohol Level (DUBAL) is a major offense with serious penalties. Lucky for you —
Dave is on your side!

• Did the officer ask you if you have consumed any alcoholic drinks?
• Did the officer ask you to take a road side screening test?

Did you know that you are not required by law to answer these questions or take these tests?!?

These tests are not designed to, and do not accurately, test your ability to drive safely. The tests have a 30% to 40% false positive rate for healthy individuals and a much higher false positive rate for the elderly or for individuals with bone or joint problems.

Officers are trained to administer the tests in such a way to insure that you appear to fail the test while you are being video taped. For example, the Officer will ask you to stand on one leg. When you do so, he will tell you “Not yet. I haven’t instructed you to start.” When the video tape is played at trial the officer will note for the jury that this was a “false start” indicating intoxication. Unless you have an experienced criminal defense attorney representing you and pointing out to the jury that the officer did not say “Stand on one leg, when I tell you to begin,” the jury may well believe that this was a false start.

The arresting Officer’s dashboard camera is frequently selected by the arresting Officer’s department and mounted so that it cannot show your eye movement. If your eye movement is not recorded during your participation in the horizontal gaze nystagmus test, then the test becomes a purely subjective test — meaning that you have failed the test if the Officer says you have failed the test. There is nothing recorded on the video tape for future analysis to dispute his assessment.

What should you do if you’re pulled over for suspected DUI?

• First, if an Officer asks you if you have consumed any alcoholic drinks or beverages, you should either say no or refuse to answer.
• Second, do not voluntarily participate in any road-side sobriety tests. If the Officer asks you to participate in a road-side sobriety test, he has already decided that he is going to arrest you and simply wants your cooperation in building his case against you.
• Finally, if an officer reads you your implied consent rights and asks if you want an additional test of your own choosing, always say “yes” and request a blood test. The officer should transport you to the nearest medical facility to have a vial of blood drawn at your expense. If the officer refuses to transport you for the blood test, your attorney can frequently get the Officer’s test results suppressed (thrown out).
  At the facility, the blood will be drawn and the vial given to you. It will be taken from you at the jail and returned to you when you post bail. Contact an attorney immediately to arrange for an independent lab test for your blood alcohol level upon release from jail. Do NOT sign anything giving the hospital or laboratory permission to share the blood sample or blood sample test results with the police Officer or his department.

What if your driver’s license is not returned to you upon release from jail?

Contact an attorney immediately to determine if the Officer turned your license in to the Georgia Department of Public Safety for an administrative suspension. When this is done, the Officer is supposed to notify you in writing that he has done so and is supposed to advise you in writing that you have ten days to request in writing that the Department conduct a hearing to see if probable cause exists to authorize your driver’s license suspension prior to your trial. Many times the arresting Officer turns in the driver’s license for suspension, but does not give to you the required written notifications so that you will fail to request the hearing within the ten day time limit.

Do not discuss your case with anyone other than your attorney.

Finally, do not discuss your case with the arresting Officer, other members of his/her department, the prosecuting attorney’s office (usually called the district attorney or solicitor) or anyone connected with the court that will be trying your case. Only discuss the details of your case with your criminal defense attorney.