How Many DUI Breath Tests Can the State Make You Take?
You are probably well aware of the fact that law enforcement commonly use chemical breath tests to help determine whether a person is legally intoxicated. Actually, it is often multiple tests. Under Georgia law, the police can take two series of two breath samples each to ascertain a DUI suspect’s blood-alcohol concentration (BAC). A single test is only admissible if the two readings are within 0.020 grams of one another–and if there is a difference, the lower result must be used.
Georgia Court of Appeals Allows Third Test Due to Insufficient Sample
Georgia law further provides that “[n]o more than two sequential series of a total of two adequate breath samples each shall be requested by the state.” In other words, once the state has taken two valid tests, they cannot demand a third. But a test is only valid if it yields a “breath sample sufficient to cause the breath-testing instrument to produce a printed alcohol concentration analysis.”
A recent decision from the Georgia Court of Appeals, State v. Youn, addressed this technical compliance with the law. In this case, Gwinnett County police officers initiated a traffic stop of the defendant at 12:55 a.m. one morning. This eventually led to the officer suspecting the defendant of drunk driving. The officers arrested the defendant and proceeded to administer three breath tests, at 1:30, 1:37, and 1:58 a.m., respectively.
The 1:30 a.m. test failed to produce any BAC reading due to what the machine described as an “insufficient sample.” The 1:37 a.m. test yielded a different error message but still managed to produce a BAC reading of 0.121. (For reference, a reading of 0.08 or higher is the standard for a “per se” DUI in Georgia.) The final test at 1:58 a.m. produced two clear breath samples with BAC readings of 0.121 and 0.114, respectively.
The state sought to introduce the 0.114 reading at trial. The defense moved to suppress, arguing that the state had no right to request a third breath test following the 1:37 and 1:58 tests. The trial judge agreed and granted the motion to suppress. The state appealed.
The Court of Appeals subsequently sided with the prosecutors and reversed the trial court’s ruling. Under the statute, the appellate judges explained, the state was permitted to request a third test since the first test produced no usable breath sample and the second test only produced one sample. As such, the samples from the final test were admissible as evidence.
Contact Hawkins Spizman Trial Lawyers Today
A drunk driving charge can turn your life upside down. That is why you must be prepared to defend yourself in court. Our Georgia Board-certified DUI lawyers can help. Contact Hawkins Spizman Trial Lawyers today to schedule a free consultation. We serve clients throughout Georgia including Atlanta, Dunwoody, Alpharetta, Cobb County, Fulton County, Gwinnett County, Johns Creek and Sandy Springs.
Source:
efast.gaappeals.us/download?filingId=80bfa051-6302-4675-91e6-a81d23a81b72
