By: W. Scott Smith

The scenario every wife, husband, father, mother or friend fears receiving:  A call from a Georgia jail, and someone has been arrested for DUI:

“Its me.  I need your help.  I got arrested last night.  I am at the Fulton county jail/ Cobb county jail/ DeKalb county jail/ Gwinnett County jail.  I am being charged with DUI.  Can you please come bail me out?”

This phone call can be one of the most important moments in your loved one’s DUI defense down the road.  Although not a secret, this information may assist your friend or family member in winning their DUI case at trial or negotiating a reduction to Reckless Driving.  If you are on Google and Googling this while you are on the phone with a friend charged with DUI in Georgia, it is extremely important to relay this information to the DUI friend or family member while in jail:

If the person in jail refused to take the DUI breath test at the jail.  Tell them to find the nearest jailer and rescind their refusal.  Meaning tell the jailer nearest them they now have changed their mind and want to take the Georgia breath test: “I am charged tonight with DUI.  The officer asked me to perform the breath test.  I initially declined.  I want to take it now.  Can you please help me in taking it?”  Make sure to remember the name of the person who they ask.

If the person in jail took the DUI breath test at the jail.  Tell them to find the nearest jailer and ask for an independent blood and breath test: “I am charged tonight with DUI.  The officer asked me to perform the breath test on the Intoxilyzer.  I took it.  I now want to take a an independent test of blood at the nearest hospital, a breath on a different machine than the one I breathed into, a urine at a hospital, or another bodily substance test.  Can you please help me in taking it?”  Make sure to remember the name of the person who they ask.

Here is the reason you want to advise your loved one charged with DUI in Fulton, Cobb, DeKalb, Atlanta or Gwinnett to request the test from the jailer.  Georgia courts have repeatedly rejected the argument that once a DUI suspect indicates to an officer that he refuses to submit to a blood-alcohol test, the matter is closed.  Georgia law recognizes the possibility that an individual may rescind his or her refusal to submit to an Intoxilyzer test, the police administered breath test down at the jail or the police department.  The machine is always on and almost always available to use.  Similarly, Georgia law allows a person in Georgia suspected of being DUI to request an independent test of their own choice.

In order for the consent to be proper after first refusing the police administered test, it must be made:

(1) within a very short and reasonable time after the first refusal;

(2) at a time when the test administered would still be accurate;

(3) when testing equipment is still readily available;

(4) when honoring the request would result in no substantial inconvenience or expense to the police; and

(5) when the individual requesting the test has been in the custody of the arresting officer and under observation for the whole time since arrest.

If the jailer does not allow you to take the test, then the initial refusal to take the state DUI breath test OR the results from taking the test will be suppressed as long as you can meet the five requirements outlined above.  This nuance in Georgia DUI law even applies to all Georgia Administrative license suspension hearings where the State attempts to suspend your license after being charged with DUI.

In essence, it comes down to timing and knowing your rights while still in custody.  The fifth factor is so important when you are on the phone with someone in jail or adult detention centers (all county jails in the state of Georgia including Gwinnett, DeKalb, Cobb, Fulton and Atlanta). Remember to tell them to ask a jailer near them to please allow them to take the test; or, if they already took the test, to ask the jailer to supply them with an independent blood test at the nearest hospital.

As we have always stressed to clients, the first thing one should do when booking out of jail after being bonded out for a DUI arrest in Georgia is write everything down. This includes a detailed description of the events leading up to the DUI.  The DUI arrest itself.  And if you followed my suggestion outlined above, the name of the jailer he or she requested to take the test (either initial breath or independent blood test). The name of the jailer is incredibly important because if you selected us as your lawyer we would want to send them a friendly reminder to memorialize the occurrence and we would want to subpoena them to court.

I hope this information is useful if you are now on the phone with someone charged.  Remember, our phone lines are on 24/7 to assist with DUI defense as it is happening.  Please call us at 404-581-0999.