Do I have to answer questions?

When an officer pulls a person over for any traffic offense, the officer usually begins the stop by asking a series of questions, including “have you had anything to drink tonight?”

Do you have to answer that question?

Simply put, you have the right to not make statements that may incriminate you.  The Fifth Amendment to the U.S. Constitution, as well as Article 1, Section 1, Paragraph XVI of the Constitution of the State of Georgia, provide you with this right.   So, questions like “have you had anything to drink, how much have you had to drink, etc.” do not have to be answered.

Now, will this alleviate the officer's suspicion of drunk driving?   No.  In fact, it will likely strengthen the officer's belief.  But, will you have self incriminated yourself, and essentially sealed your fate with your own words?  No.

So, how do you go about asserting this right in a tactful, respectful manner?  You can just say “I respectfully decline to answer that question.”  It's as simple as that.

Do I have to take the breath test?

There are two kinds of breathalyzers:  One is is a hand held version that is used on the side of the road during a stop.  The other is a stationary device that is used at the police station after an arrest.   It is imperative that you know the difference between these two tests.

ROADSIDE BREATHALYZER –  This test is conducted by blowing into a hand held device that the officer keeps handy in his/her patrol car, and the test is conducted on the side of the road at the scene of the traffic stop.  These hand held breathalyzers are not reliable or accurate.  In fact, they are so inaccurate that the results of these tests are NOT admissible against you in court.  This begs the question:  If the test is not admissible, then why would the officer want me to take it?  The answer is that the officer is trying to establish probable cause for your arrest.  The entire DUI investigation is intended to build enough evidence against you to arrest you for DUI.  This is one step along the way.  

You absolutely have the right to refuse to take a hand held roadside breathalyzer.  So, if the officer asks:  would you mind taking a breath test?  You have the right to simply say “I respectfully decline.”

INTOXILYZER 9000  – This is an entirely different type of breathalyzer.  This test is offered to you AFTER you are placed under arrest for DUI.  This issue is a bit trickier.  Georgia's Implied Consent law states that by driving your vehicle on Georgia roadways, you impliedly consent to provide a sample of your blood, breath, or urine when requested by police after your arrest.  If you refuse to provide a sample, you will lose your license to drive for a period of one year.  

HOWEVER, If you refuse to provide a sample, and the officer issues you a license suspension, you have 30 days to submit an appeal of the license suspension.  This is something you need to discuss with an attorney ASAP after your arrest.  If your appeal is successful, then your license will be restored, pending the resolution of your DUI criminal charges.

Do I have to take the field sobriety test?

The Standardized Field Sobriety Test was created by the National Highway Traffic Safety Administration, and it has been widely adopted by nearly every law enforcement department nation-wide.  However, it is not without flaws.  In fact, independent studies have been conducted on these tests over the years, and they have shown that the tests can be unreliable, especially if the officer doesn't conduct the text exactly in accordance with the standardized test procedures.

Simply put, these tests are not as reliable as everyone thinks, and they are INCREDIBLY DIFFICULT to pass, even when stone cold sober.  More importantly, there is no legal requirement for a driver to take this test.  So, can you respectfully decline to take the field sobriety test?   Absolutely. 

Do I have to take a blood test?

As mentioned above, Georgia's Implied Consent law states that everyone impliedly consents to providing a sample of their blood, breath, or urine when they operate a vehicle on Georgia roadways.  So, what's the difference between breath or blood tests?

First off, blood tests are far more accurate than breath tests.  Second, Georgia courts have held that when a person refuses to provide a breath sample, the fact that they refused cannot be used against them in court.  HOWEVER, if the officer requests a blood sample, rather than a breath sample, a person's refusal can be used against them in court.

The downside of a blood sample is that alcohol takes time to metabolize in the human body.  So, at the time of your arrest, your blood alcohol concentration may be one thing, but later on when you give your blood sample, it may be higher simply due to the amount of time that passed.  So, the test could show that you have a higher BAC than you really did at the time that you were driving.

In short, you have the right to refuse a blood test.  However, keep in mind that your refusal can be used against you in court, and you may lose your license for a period of one year.  BUT, also remember that you can file an appeal of that license suspension, as long as you do so within 30 days of your arrest.