As part of a DUI investigation law enforcement officers typically ask the suspect driver to submit to a chemical test, such as a breath test or a blood test in order to determine the driver's level of impairment. If a driver refuses, he or she can face penalties including license suspension and having the refusal introduced as evidence at trial. The reason there are penalties is because of the state's implied consent law. Under this law by choosing to operate a motor vehicle on the roads in Georgia, a driver is implicitly consenting to a chemical test if arrested for DUI. If a driver refuses to consent to a chemical test, in addition to facing the above mentioned penalties, law enforcement can still get a warrant and obtain the needed information using that instrument instead.
One right drivers do have when arrested for DUI is the right to have an independent test conducted. However, as a 2017 Georgia Court of Appeals case determined, that right is not unlimited.
In the case of Hynes v. State, the court considered whether or not
the trial court erred in ruling that OCGA § 40-6-392 (a) (3) does not grant a driver the right to an independent test when the officer obtains a search warrant for a blood test.
That is, can a driver still have an independent test done if he or she refused to take the State's chemical test? The defendant, James Hynes, contended that
the trial court should have granted his motion to suppress the results of the blood test performed pursuant to a search warrant because OCGA § 40-6-392 (a) (3) merely requires that a test be administered at the direction of a law enforcement officer before the right to an independent test accrues and does not make an exception for chemical tests administered pursuant to search warrants.
The Court disagreed with this notion, stating
[l]ike many other states, Georgia relies upon incentives and penalties in the implied consent law to encourage DUI suspects to submit to State-administered testing. ... Georgia's implied consent law offers two choices to DUI suspects: "(1) submit to State-administered chemical testing with right to independent testing, if desired, or (2) refuse State testing, suffering the attendant evidentiary consequences."
The court reasoned
[t]he law provides for penalties, including license revocation and admission into evidence the refusal to submit to state-administered testing, but also offers a DUI suspect an incentive ‘carrot' of additional testing after accepting the required state-administered chemical testing.
Thus, the court determined that by refusing the state-administered test after being advised of the implied consent law, defendants give up their right to an independent test.
Contact a Gwinnett County DUI Attorney
If you have been arrested and charged with driving under the influence, contact the experienced and knowledgeable Gwinnett County DUI attorneys at the Law Offices of Richard S. Lawson today for a free case consultation.
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