[GeorgiaGlocker]

It was a unanimous decision.

http://www.13wmaz.com/news/cops-can...halyzer-georgia-supreme-court-rules/483771198

 

[Glockenator]

Interesting. I was under the impression, from what I was told here (if I recall correctly) that it wasn't already required in GA for a suspected DUI driver take a breathalizer or FST - that they could refuse either or both of those tests. My understanding is that Implied Consent only covers blood tests. Apparently, that was incorrect...until now.

I have a much bigger problem with FST's. It seems that they are designed so that a large portion of people with fail them, either sober or impaired. If you are tired from a long day, or just an uncoordinated person, you will score poorly, even if you are stone-cold sober. If you are old, you are far more likely to score more poorly than a young person. And I would likely screw up the backwards alphabet, no matter what. If I were suspected of a DUI, I would respectfully refuse a FST, no matter what, for these reasons.

 

[AtlPhilip]

The FST isn't actually a test. It's the police producing a video for use in your prosecution.

As for the article, how is one convicted of DUI less safe and DUI BAC for the same act?

 

[NTA]

I don't trust any cheap machinery that can be wrong or tampered with.

What's worse, jury's love this scientific instrument evidence.

 

[moe mensale]

i don't trust any cheap machinery that can be wrong or tampered with.

What's worse, [uninformed] jury's love this scientific instrument evidence.

fify.

 

[NTA]

Here in TX, during especially big drunk'ish weekends, the cops have a judge standing by on the phone to get an instant verbal warrant for blood draw.

Not as good as the old days in Houston when the cops carried a pad of pre-signed warrants. That was determined to be pushing the Constitution a bit too hard.

 

[AtlPhilip]

My understanding is that Implied Consent only covers blood tests.

Implied consent for blood tests was overturned in BIRCHFIELD v. NORTH DAKOTA (2015)

After arresting petitioner William Robert Bernard, Jr., Minnesota
police transported him to the station. There, officers read him Minnesota's
implied consent advisory, which like North Dakota's informs
motorists that it is a crime to refuse to submit to a BAC test. Bernard
refused to take a breath test and was charged with test refusal
in the first degree. The Minnesota District Court dismissed the
charges, concluding that the warrantless breath test was not permitted
under the Fourth Amendment.

Held:
1. The Fourth Amendment permits warrantless breath tests incident
to arrests for drunk driving but not warrantless blood tests.

(a) Taking a blood sample or administering a breath test is a
search governed by the Fourth Amendment. These searches may nevertheless be exempt from the warrant requirement if they fall within, as relevant here, the exception for searches conducted incident to a lawful arrest.

 

[Glockenator]

Implied consent for blood tests was overturned in BIRCHFIELD v. NORTH DAKOTA (2015)

Now I am really confused. Are you saying that Implied Consent no longer exists in Georgia? If that is the case, and an impaired driver refuses to take a FST, breathalizer and blood test, then how could he/she be convicted of a DUI?

edited: Reading your quote again, it now appears that breathalizers are required, but blood tests aren't. Correct? In that case, just about anyone could get away with a DUI on weed. Or is the key word "warrantless"? A warrant issued by a judge would require either a breathalizer or blood test? I am easily confused.
I am heading out for a mountain bike ride, so I won't have a chance to read or reply for a while.

 

[AtlPhilip]

You can refuse the breathalizer. At that point the state performs a blatant end run of the 5th & 7th amendments by declaring that the penalties it hands down are not "criminal" but "civil".

The state also keeps an ace up it's sleeve in OCGA § 40-6-391(b) which allows the state to convict you only on the officer's determination that you are "less safe... to drive". Conveniently, this has absolutely no objective standard.

 

[NTA]

That 'civil' deal is a terrific end run.
Speed cameras are illegal in TX.
Some cities use them anyway and assess a civil penalty/fine.

But, an unpaid fine of this type, prevents renewal of DL's and annual car registration tax. Sort of like an unpaid parking ticket in GA (info of which is shared with other states too).

 

[Glockenator]

You can refuse the breathalizer. At that point the state performs a blatant end run of the 5th & 7th amendments by declaring that the penalties it hands down are not "criminal" but "civil".

The state also keeps an ace up it's sleeve in OCGA § 40-6-391(b) which allows the state to convict you only on the officer's determination that you are "less safe... to drive". Conveniently, this has absolutely no objective standard.

So, is it true that based on that, you could get a "DUI"...I mean "Less safe to drive", if you were driving home from a long day, tired, but with no alcohol, illegal drugs, or even legal prescription drugs in your system, even as proven by a breathalizer and blood test (if you allowed either), being stone-cold sober, just because you were tired and didn't act the way the cop thought you should act?

If so, we need to get some legislatures to fix this utter garbage. That is exactly what the Cobb PD and that slimeball cop Carroll (the "drug recognition expert" who is everything but that) have been doing. I was pleased to read in the local paper about a class action suit against them for that stuff.

If would be everything I could possibly do, to not get arrested for something else, if a cop went to arrest me for that mess, when I was completely sober. I would most likely fail at restraining myself. Bad police departments and bad cops are one of the most disgusting things there are, in my mind.

 

[Malum Prohibitum]

Interesting. I was under the impression, from what I was told here (if I recall correctly) that it wasn't already required in GA for a suspected DUI driver take a breathalizer or FST - that they could refuse either or both of those tests.

Your understanding is correct, and this ruling does not change that.

I am assuming by "breathalyzer" you mean the hand held one out on the road.

So, is it true that based on that, you could get a "DUI"...I mean "Less safe to drive", if you were driving home from a long day, tired, but with no alcohol, illegal drugs, or even legal prescription drugs in your system, even as proven by a breathalizer and blood test (if you allowed either), being stone-cold sober, just because you were tired and didn't act the way the cop thought you should act?

No, your hypothetical is not true.

 

[Glockenator]

Your understanding is correct, and this ruling does not change that.

I am assuming by "breathalyzer" you mean the hand held one out on the road.

No, your hypothetical is not true.

Yes - I meant a portable breathalyzer.

My hypothetical was based on this:

"The state also keeps an ace up it's sleeve in OCGA § 40-6-391(b) which allows the state to convict you only on the officer's determination that you are "less safe... to drive". Conveniently, this has absolutely no objective standard."

What am I missing on that scenario? It isn't so much the arrest part that concerns me, as the conviction part.

 

[Malum Prohibitum]

Google the code section, read subsection (b), then reconsider. Read it again and again until it comes to you.

 

[Glockenator]

Google the code section, read subsection (b), then reconsider. Read it again and again until it comes to you.

I did, and found nothing under that code that mentioned anything about implied consent.

I was simply asking for clarification on what seemed to me to be conflicting information posted in this thread.

 

[Malum Prohibitum]

I guess I am a little lost on what you are asking. No, you do not have to submit to field sobriety tests, including the handheld alco-sensor. No, you cannot be convicted of DUI less safe if tests show no drugs or alcohol in your system. If these do not answer your questions, then please ask in another way, and I will see if I can help.

I was simply asking for clarification on what seemed to me to be conflicting information posted in this thread.

Contradictions do not exist. Whenever you think you are facing a contradiction, check your premises. You will find that one of them is wrong.

- Francisco D'Anconia​

 

[Glockenator]

I guess I am a little lost on what you are asking. No, you do not have to submit to field sobriety tests, including the handheld alco-sensor. No, you cannot be convicted of DUI less safe if tests show no drugs or alcohol in your system. If these do not answer your questions, then please ask in another way, and I will see if I can help.

Contradictions do not exist. Whenever you think you are facing a contradiction, check your premises. You will find that one of them is wrong.

- Francisco D'Anconia​

That does answer the question I was asking. Thanks.

 

[GM404]

The DUI laws in this state bother me, especially the "less safe". Example from Duren v. State 252 Ga. App. 257:

The officer's testimony based on the HGN test that defendant was under the influence of alcohol constituted evidence that from which the jury could determine that defendant was impaired to the extent that he was a less safe driver. Also, defendant's refusal to take the breathalyzer tests was circumstantial evidence of his intoxication.

and

To establish a violation of Ga. Code Ann. § 40-6-391(a)(1), no requirement exists that the person actually commit an unsafe act. Moreover, no particular combination of factors or clues derived from a person's appearance or demeanor are required to establish a violation of § 40-6-391(a)(1).

Oye vey.

 

[Mrs_Esterhouse]

The DUI laws in this state bother me, especially the "less safe". Example from Duren v. State 252 Ga. App. 257:

and

Oye vey.

Think of the children! :groupprotest:

 

[AtlPhilip]

I guess I am a little lost on what you are asking. No, you do not have to submit to field sobriety tests, including the handheld alco-sensor. No, you cannot be convicted of DUI less safe if tests show no drugs or alcohol in your system. If these do not answer your questions, then please ask in another way, and I will see if I can help.

- Francisco D'Anconia​

I am stunned you quoted Frank...

Back to the issue, can you be convicted of DUI less safe if there is no test taken at all?