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There is no Right to Consult an Attorney When Deciding Whether to Take Georgia DUI Tests

A driver is pulled over in Georgia.  The operator of the vehicle is suspected of being under the influence of alcohol, drugs, medication or inhalants.  Over the course of the encounter, the person will be confronted with a number of important questions which will have significant legal repercussions.  In most cases, the person will not have prepared for this encounter.  They did not plan to be in this situation.  In the case of a person using medication, they may have had no idea or awareness that the medication would draw their manner of driving into question.

They will be asked questions about their use of alcohol or drugs.

They may be asked about their medical conditions or medications.

They may be asked to submit to field sobriety evaluations.  Some of these tests may be the so-called standardized field sobriety tests that claim some validity even if they have never been peer-reviewed and their math doesn't add up.  Some tests will be exercises with no demonstrated ability to reveal impairment or presence of drugs and alcohol.

They will be asked to submit to a state chemical test.  In doing so, the officer will read to the person the implied consent warning.  For most drivers, this warning is as follows:

Georgia law requires you to submit to state administered chemical tests of your blood, breath, urine or other bodily substances for the purposes of determining if you are under the influence of alcohol or drugs.

If you refuse this testing, your Georgia driver's license or privilege to drive on the highways of this state will be suspended for a minimum period of one year.  Your refusal to submit to the required testing may be offered into evidence against you at trial.

If you submit to testing and the results indicate an alcohol concentration of 0.08 grams or more, your Georgia driver's license or privilege to drive on the highways of this state may be suspended for a minimum period of one year.

After first submitting to the required state tests, you are entitled to additional chemical tests of your blood, breath, urine, or other bodily substances at your own expense and form qualified personnel of your own choosing.

Will you submit to the state administered chemical tests of your {designate which tests} under the Implied Consent Law?

This is a complicated advisement with multiple options and consequences for the decisions that are made.

For one thing, what other bodily substances might they consider testing for the presence of alcohol or drugs? Ocular fluid? Spinal fluid?  A tissue sample?  The truth is that the only three substance that I am aware of that are tested in this context at this time are blood, breath and urine; although some testing regimes include saliva and hair.  Since the officers are currently only going to choose among the main three, it would be simpler and clearer to eliminate the catchall "other bodily substances."  However, the purpose may not be clarity.

The person is then told that refusal of the requested test will result in suspension of the driver's license or privilege to drive in the state.  This takes into account Georgia licensed drivers and drivers licensed in other states.  Georgia lacks authority to suspend a driver's license issued by another state.  However, many drivers may not appreciate the distinction made in the language of the warning and may believe that their non-Georgia driver's license will be suspended if they refuse the test.

The driver is then told that a refusal will be admitted into evidence against the driver in court.  It is not uncommon for me to talk to people who believe that refusal of the state test means that you are automatically guilty.  That is certainly not true, but the advisement suggests that this will be a powerful piece of evidence against the driver.

On the other hand, if the person submits to the state chemical tests, the person may be giving the state of Georgia powerful evidence to use against him.

Refusal or submission to the state chemical tests can have tremendously different consequences based on the expected results, the age of the driver, the class of license, the driving history, the holding of professional or pilot's licenses, the state of licensure, and whether anyone may have been injured or killed as a result of the manner of driving.

So a private citizen is facing a monumental legal decision when he answers yes or no to that final question.  On the side of the road, most drivers have no training, knowledge, or ability to forecast all of the consequences of the decision in order to make the best decision under the circumstances.

This seems like a situation where a person ought to be able to consult with an attorney.  If the person was arrested and brought to the police station to be questioned about a suspected crime other than DUI, they would be told that they had a right to an attorney to advise them about whether to answer questions and what questions to answer.

A few states recognize the importance of this decision and have put into law the right of the person to have a reasonable opportunity to seek legal counsel to assist them in making this decision.  A quick Google search shows that Oregon and Kentucky and perhaps others believe that citizens should have the opportunity to have legal assistance in this situation.  The states that allow this opportunity to drivers set reasonable time frames on the exercise.  Kentucky, for instance, allows the driver between ten and fifteen minutes to attempt to contact and consult with a lawyer before making the decision.

The courts have not recognized a constitutional right to counsel in making this decision.  Any such protection must come from the legislature.  In Georgia, the legislature has not seen fit to allow this protection to its licensed drivers or drivers from other states.

As a result, the driver in our example is left to make a decision with no real appreciation for the true consequences of that decision.

Sean A. Black

Sean A. Black is a 1992 graduate of the Emory University School of Law. He has been in private practice in Toccoa, Georgia since June 1, 1992.

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