R. DAVID BRYAN, L.L.C.
Attorney at Law
211 Park Ave. ~ P.O. Box 1979
Tifton, GA 31793
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If you've been charged with a DUI, you may have only 10 business days to avoid an automatic suspension of your driver's license.
Contact our office for more information.
A good rule is to not drink and drive. But, if you are stopped and investigated by law enforcement for DUI, you have certain rights of which you may not be aware. Following below are examples of what you likely will encounter if stopped by law enforcement and investigated for DUI, and what your legal rights include. If you've been arrested for DUI, you need to talk to a lawyer experienced in DUI laws to fully understand your post-arrest rights and possible defenses.
Attorney R. David Bryan served 9 years as a prosecutor in Worth County State Court prosecuting all types of misdemeanor charges, including hundreds of DUIs; and Mr. Bryan served as a municipal court judge for 12 years, presiding over all types of traffic offenses, including hundreds of DUIs.
YOU HAVE THE RIGHT TO:
~ Politely refuse to tell the officer where you’ve been or where you are going.
~ Politely refuse to tell the officer whether or not you have consumed alcoholic beverages.
~ Politely refuse any “field sobriety” tests such as the “one-legged stand,” “walk & turn,” “HGN” test (following hand-held object with eyes), and the Alco-Sensor device.
~ Politely refuse to have your vehicle searched; if the officer ignores your refusal and begins a search, politely restate your refusal.
YOU SHOULD:
~ Be respectful and polite at all times to the officer.
~ Be aware that the incident is most likely being recorded by audio and video equipment.
~ Provide the officer with your drivers license, proof of insurance and registration.
~ Be sure you give accurate information regarding your drivers license, insurance and registration if you do not have any one of these things with you.
~ Be aware, if you are arrested, your driver’s license may be suspended within 30 days unless you request a hearing within 10 business days of your arrest.
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TRAFFIC STOP AND INVESTIGATION FOR DUI! WHAT'S IT LIKE?
YOU HAVE BEEN STOPPED AND THE OFFICER SMELLS ALCOHOL:
If you are stopped by a Georgia law enforcement officer for speeding, defective tail light, failing to dim your bright lights, weaving, license check or the like, and the officer smells an alcoholic beverage on you, the officer likely will go through a series of investigatory questions with you, most of which you are entitled to refuse to answer. The list of "Rights" in the upper-left are examples of the questions you likely will run into, and the officer usually will ask you to exit your vehicle and agree to perform at least one field sobriety test out of those listed. HOWEVER, IN GEORGIA, YOU ARE UNDER NO LEGAL OBLIGATION TO ANSWER THE ABOVE QUESTIONS OR TO DO ANY FIELD SOBRIETY TESTS SUCH AS THOSE LISTED, AND THERE IS NO LEGAL PENALTY FOR REFUSING TO ANSWER SUCH QUESTIONS OR DO ANY FIELD SOBRIETY TESTS.
When being questioned by a police officer during a traffic stop, and the conversation leads to questions about your alcohol consumption and where you’ve been, etc., it is only natural to feel an urge to answer all of the officer’s questions, and to perform the “sobriety” tests the officer asks you to do. Most people think that if they don’t answer the questions and do all that the officer asks, then they will be arrested. It is clear that many people believe that telling an officer that they've had only "a couple of beers" will get them out of trouble. You should know, however, that if you tell the officer that you have consumed any alcoholic drinks, or attempt to perform any “field sobriety” tests for the officer, you are agreeing to give evidence against yourself; and the officer will use this evidence as his legal cause (probable cause) to arrest you, and, later, perhaps to convict you of DUI.
The fact of the matter is, when an officer asks a driver to perform any field sobriety tests, the officer may already have enough evidence to legally arrest a driver for DUI. If, for instance, an officer stops a driver for “weaving,” smells alcoholic beverage coming from the driver, the driver’s speech is “slurred” and the driver’s eyes are “glassy and bloodshot,” that person likely is going to be arrested for DUI regardless of whether or not the driver answers any questions or agrees to perform any field sobriety tests. As a former municipal court judge and state court prosecutor, I would agree that the arrest of a person for DUI after displaying such characteristics would be legal. So, why would an officer go on to ask such a driver questions about their alcohol consumption and to perform field sobriety tests when the driver clearly appears impaired from alcohol? Because the officer wants all the evidence he can get not only to justify the arrest, but to gather evidence to convict the person for DUI at trial. Remember, most law enforcement now working traffic have audio/video equipment in their vehicles which begin recording video through the front windshield and audio from the microphone on the officers’ shoulder upon turning on the emergency blue lights, if not before.
On the other hand, if a driver is stopped for speeding, and the officer smells alcoholic beverage coming either from the driver or from within the car, without more, the officer probably will feel that he does not have sufficient evidence to arrest for DUI at that point, and will want more evidence before making the arrest. As a former municipal court judge and state court prosecutor, I would agree that the officer needs more evidence to make a legal arrest for DUI under these circumstances. That is when most officers would ask the driver if he or she has consumed any alcohol, etc., and to step out of the car to perform some (field sobriety) tests. In this case scenario, the officer usually knows that he really needs to gather more evidence of impairment to make a legal arrest and, later, to convict the driver for DUI, and that the audio/video recording in his car will help gain a conviction. What this driver likely would be asked to do for the officer's recording equipment is explained next.
The one-legged stand is just what it sounds like. Generally, a DUI suspect is asked to stand on one leg for a count. Generally, the walk & turn is where a DUI suspect is asked to walk heel to toe for nine steps, turn and return in a certain fashion. The problem with the one-legged stand and walk & turn “field sobriety” tests as evidence of alcohol impairment is that most completely sober people cannot successfully perform them; at least not according to law enforcement's pass/fail criteria. There are numerous reasons many sober people cannot successfully perform these 2 tests: A natural lack of ability, or physical disability, or just because of the stress felt by all people under the circumstances. Even if you can perform the one-legged stand or the walk & turn tests without apparent problem, but are mistaken on the instructions given to you by the investigating officer on how to correctly perform the tests, this can and probably will be used against you as clues of your impairment from alcohol. So, why agree to provide such evidence when the state of Georgia does not require you to?
Another field sobriety test used by law enforcement to gather evidence for making a DUI arrest is the Alco-Sensor device. The Alco-Sensor device is a hand-held instrument which measures the alcohol concentration in your body much like the official breath testing equipment. Many law enforcement officers carry this hand-held device with them in their patrol car and may ask a driver to blow into it to test the alcohol concentration in the driver while still at the scene of the traffic stop. This device is not the official equipment used to register the “breath test” that most people have heard of being used to convict someone for DUI. Once blown into, the Alco-Sensor will register a numerical value of a person’s percentage BAC (blood alcohol concentration), but the actual readings from the device are not permitted by Georgia courts as evidence to convict a driver of DUI. However, the officer can later testify to the positive readings of alcohol presence to help justify arresting a driver for DUI. Again, a driver in Georgia is not legally required to blow into an Alco-Sensor device at any time.
The fourth common field sobriety test is called the HGN (Horizontal Gaze Nystagmus) test. This test is designed to reveal what is called nystagmus, involuntary jerking in the eyes, which results from alcohol or certain drugs being in a person’s body. However, the same type of jerking eye movement can be found in many people without them having consumed alcohol or drugs. The officer usually will use a pen or pen-light as a marker, and the driver is asked to focus their eyes on and follow the marker as the officer moves it. The officer should hold the marker in front of the driver's face, centered, and about 12 inches from just above level with the driver’s eyes. The officer will then take the marker out left on a level plane and back to center, and then out right and back to center, looking for nystagmus to begin at about 45 degrees from the eyes as a sign of impairment. The procedure and analysis is much more complicated than what I describe here, but suffice it to say that, just like all the other field sobriety tests, you do not have to submit to it.
So, what do you do when stopped for a traffic violation and confronted by a law enforcement officer asking questions about your alcohol consumption and asking you to perform field sobriety tests? Well, if you are comfortable talking to the officer beyond showing the officer proof of your current driver’s license and proper insurance and registration, then you could ask the officer to confirm for you that you do not have to answer such questions and perform such field sobriety tests, or you could say that you want to consult your attorney before doing so, or you could just simply say that you’d rather not answer any questions or perform any tests. In any event, after the officer has told you why you were stopped, and after you politely have refused to answer investigatory questions and perform any tests, ask the officer if you are free to leave. At that point, the officer probably either is going to arrest you or not, but at least you have not helped the officer gather evidence to justify your arrest or convict you later in court for DUI. If, after you've asked the officer if you are free to leave, he tells you that you are not free to leave, this will raise other legal questions about the officer's procedure; and the answers from the court may help your case. Remember, every stop has to be a legal stop; and every arrest must be a legal arrest. The fact that the officer did not legally have a right to stop or arrest you may win your defense case.
If a Georgia law enforcement officer tells you that you are under arrest for DUI, then the officer should take out a card and read to you what are called your “Implied Consent Rights.” (Do not ask the officer about your “Implied Consent Rights” because if the officer fails to read these rights to you, this may benefit your defense of the case.) The object of reading to you your Implied Consent Rights is to notify you that the officer is going to request a test of your BAC (blood alcohol concentration) found either in your breath, urine or blood. This test is completely separate and unrelated to the hand-held Alco-Sensor device the officer may have asked you to blow into at the scene of the stop. If the officer says that he is requesting a test of your breath, which by far is the most often requested test, then the test will be administered by the use of the Intoxilyzer 5000 machine, usually located at the jail in the county where you are arrested. In the alternative, the officer may ask for a test of your urine or blood instead, depending on the circumstances. The Intoxilyzer 5000 machine is the official test equipment for testing your BAC. In any event, if you refuse to submit to the requested test of your BAC after the officer reads to you your “Implied Consent Rights,” then your chances of losing your driver's license increase greatly as a “refusal” of the test may result in a 12 month suspension of your driver's license for that reason alone. An additional right granted to you under your Implied Consent Rights is the right to request a testing of your BAC by a medical professional of your own choosing. If you request this of the arresting officer, the officer must make a reasonable effort to accommodate your request to be tested by your chosen professional after you have submitted to the officer’s requested test.
If you are arrested, be aware that your driver’s license may be administratively suspended within 30 days of your arrest unless you request a hearing within 10 business days of your arrest.
If you are arrested for DUI, you may call my office at tel. # (229) 387-8005 upon your release for a free phone consultation.
The above is for information only and is not intended as legal advice.