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SELF-INCRIMINATING STATEMENTS DURING TRAFFIC STOPS

Posted by Preston Fleming | Feb 04, 2020 | 0 Comments

Let's Talk About Self-Incrimination and GA's Implied Consent Law.

The purpose of this blogpost is to clear up some misconceptions drivers may have about appropriate actions to take if pulled over under suspicion of DUI. If an officer pulls you over, as in most cases for a simple traffic violation, she may suspect you are under the influence of alcohol or drugs. Visual clues that may tip her off include slurred speech, bloodshot eyes, confusion, and obviously, the smell of alcohol.

However, on many occasions none of these factors are present and the driver raises the officer's suspicion by giving verbal queues. For example, you ever noticed that when an officer pulls you over usually the first question they ask is, “Do you know why I stopped you?“ They're not just “wondering” if you know, the purpose of that question is to see if you'll incriminate yourself and admit to the traffic violation. Usually the second question is, “So, where are you heading today” or “where are you coming from”, again, she's not just engaging in small talk without a purpose.

That's why it's so important not to engage in this small talk and respond only when you have to. That doesn't mean you have to be rude to the officer, but you can politely tell her that you will not answer any of her questions. And you have to follow her commands, i.e. if she asks you to step out of the car, you must step out of the car.

Let's say you get pulled over having had 1 drink with dinner, you are by no means under the influence, and are in fact under the legal limit of 0.08 % BAC. If you tell the officer that she'll probably ask you to step out of the car and do a standard field sobriety test (SFTS). The SFST was developed by the National Highway Traffic Safety Administration (NHTSA). In GA the tests include the Horizontal Gaze Nystagmus, the one-leg-stand, walk-and-turn. These tests are notoriously unreliable and are set up to make the driver fail. Also, you may not be able to pass the SFST because you've got arthritis in both knees or the officer simply administered the test improperly because her instructions were inaccurate or ambiguous.

This test is voluntary, and you have the right to refuse to take it, and no matter what, you should. Even if you are a nondrinker and you know for sure there is 0.0% alcohol in your blood. Certain physical conditions make it very difficult to complete this test perfectly and it serves you absolutely no purpose to submit to the test, but it most certainly will work against you if you don't do well on it. Know however that, just because you refuse to take it, the officer likely won't just let things go and will continue her inquiry if she suspects you are under the influence.

Next, if the officer has a device with her, you may be asked to perform a roadside breathalyzer test. Know that you also have the right to refuse this test and you should  refuse if you are concerned about your potential reading. These tests are inaccurate therefore, you should never take a roadside breathalyzer unless you are absolutely sure that your blood alcohol content is zero. Even if you have only had one or two drinks, a roadside breathalyzer can and often does, erroneously register a reading over the legal limit in the state of Georgia.

Additionally, your BAC could inaccurately read 0.08% because the machine wasn't properly calibrated, or some food you ate elevated your BAC, or you just brushed your teeth and rinsed with mouthwash after dinner. 

So, you've been pulled over for a minor traffic violation and refused to answer any of the officer's questions (don't engage in her banter), other than providing driver's license, registration, and confirming your address is current. Well then, unless there are clear signs that you may be under the influence of drugs or alcohol, this scenario will more than likely end well for you. You'll be issued a citation for the violation and sent on your way. Heck, you may even get off with just a warning. You see why it's so important not to talk to the police. However, if you start to tell the officer your life story, you could end up spending the night in jail, even if you weren't under the influence or had nothing to drink.

Now let's talk about GA's Implied Consent Law. On April 28, 2019, the Governor Kemp signed into law a NEW implied consent "notice." Under this most recent law, if you're arrested under suspicion of DUI you are required to submit to chemical tests of your blood, breath, urine, or other bodily substances for the purpose of determining if you are under the influence of alcohol or drugs. If you refuse to submit to such tests your driver's license will be suspended for a year.

The rationale behind the law is that driving is a privilege, not a right, and in exchange for the privilege of being allowed to drive on Georgia's roads, you agree to comply with an officer's request for such tests.

The suspension of your license is obviously a civil penalty, but the implied consent law comes into play in any subsequent criminal prosecution for DUI. In addition to the suspension of your license, the act of refusing these tests can be used as evidence against you at your DUI trial.

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Here is the 2019 Implied Consent law, in its entirety, under OCGA 40-5-67.1:

(a) The test or tests required under Code Section 40-5-55 shall be administered as soon as possible at the request of a law enforcement officer having reasonable grounds to believe that the person has been driving or was in actual physical control of a moving motor vehicle upon the highways or elsewhere throughout this state in violation of Code Section 40-6-391 and the officer has arrested such person for a violation of Code Section 40-6-391, any federal law in conformity with Code Section 40-6-391, or any local ordinance which adopts Code Section 40-6-391 by reference or the person has been involved in a traffic accident resulting in serious injuries or fatalities. 

Subject to Code Section 40-6-392, the requesting law enforcement officer shall designate which test or tests shall be administered initially and may subsequently require a test or tests of any substances not initially tested.

(b) At the time a chemical test or tests are requested, the arresting officer shall select and read to the person the appropriate implied consent notice from the following:

(1) Implied consent notice for suspects under age 21:

“The State of Georgia has conditioned your privilege to drive upon the highways of this state upon your submission to state administered chemical tests of your blood, breath, urine, or other bodily substances for the purpose 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 blood or urine testing may be offered into evidence against you at trial. If you submit to testing and the results indicate an alcohol concentration of 0.02 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 requested state tests, you are entitled to additional chemical tests of your blood, breath, urine, or other bodily substances at your own expense and from qualified personnel of your own choosing. Will you submit to the state administered chemical tests of your (designate which test)?”

(2) Implied consent notice for suspects age 21 or over:
The State of Georgia has conditioned your privilege to drive upon the highways of this state upon your submission to state administered chemical tests of your blood, breath, urine, or other bodily substances for the purpose 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 blood or urine 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 requested state tests, you are entitled to additional chemical tests of your blood, breath, urine, or other bodily substances at your own expense and from qualified personnel of your own choosing. Will you submit to the state administered chemical tests of your (designate which test)?'

(3) Implied consent notice for commercial motor vehicle driver suspects:
“The State of Georgia has conditioned your privilege to drive upon the highways of this state upon your submission to state administered chemical tests of your blood, breath, urine, or other bodily substances for the purpose of determining if you are under the influence of alcohol or drugs. If you refuse this testing, you will be disqualified from operating a commercial motor vehicle for a minimum period of one year. Your refusal to submit to blood or urine testing may be offered into evidence against you at trial. If you submit to testing and the results indicate the presence of any alcohol, you will be issued an out-of-service order and will be prohibited from operating a commercial motor vehicle for 24 hours. If the results indicate an alcohol concentration of 0.04 grams or more, you will be disqualified from operating a commercial motor vehicle for a minimum period of one year. After first submitting to the requested state tests, you are entitled to additional chemical tests of your blood, breath, urine, or other bodily substances at your own expense and from qualified personnel of your own choosing. Will you submit to the state administered chemical tests of your (designate which test)?”

If any such notice is used by a law enforcement officer to advise a person of his or her rights regarding the administration of chemical testing, such person shall be deemed to have been properly advised of his or her rights under this Code section and under Code Section 40-6-392 and the results of any chemical test, or the refusal to submit to a test of such person's blood or urine, shall be admitted into evidence against such person. Such notice shall be read in its entirety but need not be read exactly so long as the substance of the notice remains unchanged.

If you've been arrested and charged with DUI or any other criminal offense contact Attorney Preston Fleming at The Fleming Firm to schedule a FREE CONSULTATION.

He can be reached at (770)727-0599 or [email protected]. You can also simply complete the contact form on this website and submit it. Someone from our firmwill reach out to you within 24 hours

About the Author

Preston Fleming

To achieve all that is possible, we must attempt the impossible. To be as much as we can be, we must dream of being more. Attorney Fleming is a solo practitioner and owner of The Fleming Firm. He is also a retired naval officer who took one of the more non-traditional routes to becoming an attor...

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