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It was a unanimous decision.
http://www.13wmaz.com/news/cops-can...halyzer-georgia-supreme-court-rules/483771198
http://www.13wmaz.com/news/cops-can...halyzer-georgia-supreme-court-rules/483771198
fify.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.
Implied consent for blood tests was overturned in BIRCHFIELD v. NORTH DAKOTA (2015)My understanding is that Implied Consent only covers blood tests.
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.
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?Implied consent for blood tests was overturned in BIRCHFIELD v. NORTH DAKOTA (2015)
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?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.
Your understanding is correct, and this ruling does not change that.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.
No, your hypothetical is not true.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?
Yes - I meant a portable breathalyzer.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.
I did, and found nothing under that code that mentioned anything about implied consent.Google the code section, read subsection (b), then reconsider. Read it again and again until it comes to you.
Contradictions do not exist. Whenever you think you are facing a contradiction, check your premises. You will find that one of them is wrong.I was simply asking for clarification on what seemed to me to be conflicting information posted in this thread.
That does answer the question I was asking. Thanks.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
andThe 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.
Oye vey.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).
Think of the children! :groupprotest:The DUI laws in this state bother me, especially the "less safe". Example from Duren v. State 252 Ga. App. 257:
and
Oye vey.
I am stunned you quoted Frank...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