Understanding DUI Arrests and Breath Tests in Georgia

When you have been pulled over and are suspected of DUI in Georgia, you could be asked to provide a sample of your breath - either before arrest (handheld), after arrest, or both. Misconceptions exist about what your rights are and what these types of tests are. Misunderstandings can lead to more problems, especially if you are facing DUI charges in Georgia

At Owens Law, P.C., we believe in educating our clients on what happened to them and why.  We believe informed clients make better decisions about their DUI case and generally have less anxiety about their situation.  Call us at (678) 661-1DUI as soon as possible to schedule an initial consultation.

What Are Breath Tests?

Police officers use breath tests in roadside testing and following arrests to help determine the amount of alcohol in an alleged impaired driver's system.  There are two different types of breath tests: the preliminary breath test (PBT) and the breathalyzer. Both "types" are often simply called "breath tests" by most people, and that's where the confusion comes in. By referring to both as breath tests, people assume they are the same thing, but they are not. Each is administered for different reasons and purposes.

Preliminary Breath Tests

A preliminary breath test (or PBT) is a breath alcohol test conducted using a portable breath machine on the side of the road during a traffic stop or DUI investigation. The PBT measures a person's breath alcohol content (BrAC) and gives the officer a numerical result.  However, that numerical result is inadmissible in court because the devices are not calibrated by the State and can therefore be unreliable.  Instead, the officer can only testify to whether the sample was positive or negative for alcohol.  

Breathalyzers

After an arrest for DUI, the arresting officer is supposed to inform you of your implied consent rights and ask for a blood, breath or urine test.  Officers usually ask for a blood test, but sometimes ask for a breath test on a breathalyzer at the police station or jail.  The breathalyzer is not a portable machine and produces results that are more accurate and can be admitted into court as evidence against you. Approved breathalyzer machines are subject to periodic calibration requirements established by state law.

Do I Have a Right to Refuse a Breath Test in Georgia?

Yes, you have a right under Georgia's Constitution to refuse a PBT roadside and a breathalyzer at the jail.  Both are completely voluntary and your refusal to submit to them cannot be used against you in your DUI case.  

Keep in mind, however, that refusing to submit to a breathalyzer can have significant consequences to your driver's license due to Implied Consent laws. 

Implied Consent simply means that, when you choose to drive on the roadways of Georgia, you are implicitly agreeing to submit to chemical testing of your blood, breath, or urine at the request of law enforcement after you have been properly arrested for DUI in Georgia.  Thus, if you refuse to submit to chemical testing after a DUI arrest, the arresting officer is supposed to begin the process of administratively suspending your driver's license for a year independently of your actual DUI case. 

If you refuse to submit to a breathalyzer, the police have the option of asking a judge for a search warrant to collect a blood sample for a test of your blood. Blood tests are much more reliable and accurate.

If you are arrested for DUI in Atlanta, Georgia, you should speak to a DUI defense attorney who, like Owens Law P.C., handles both administrative and criminal DUI cases. Administratively, you can appeal an administrative license suspension within thirty (30) days of your arrest and continue to drive while we address the underlying DUI charge in court.   

Common Problems with the Breath Tests in Fulton County, Georgia

Breath tests using portable machines are known to be unreliable, and that's why they are not admissible in court. Breath tests using breathalyzers at the police station or jail, however, can be admissible if the police followed proper protocols and procedures. They, too, can also be unreliable and become inadmissible under certain situations or circumstances.

Problems with breathalyzers can be categorized as those resulting from the testing device or machine, the individual operating the device, or the test sample.

Problems with the Breathalyzer Device

• Improper calibration
• Incorrect chemical solutions
• Inappropriate modification
• Faulty programming
• Broken or otherwise not maintained properly

Issues with the Administration of the Test

• Improper instructions or methodology
• Failure to follow testing protocols
• Testing performed by an untrained person

Causes of Improper Breathalyzer Test Readings

• Pre-existing conditions or other medical conditions suffered by the test taker
• Medications, foods, or drinks
• Residual alcohol from the test taker's mouth
• Certain diets, like Keto

Breath tests can be challenged. An expert DUI defense attorney can file motions to suppress or exclude the results. Sometimes, if successful, this could result in dismissal of the charges or an acquittal.

Five Ways We Challenge DUI Breath Tests in Cobb County, Georgia

A breath test is often a substantial part of the prosecution's case involving DUI offenses. For that reason, it is essential to ensure that a breath test was performed correctly and the results are accurate.  DUI defense attorneys who have been well trained and have experience in these cases can identify a problem with a breath test and take proper action to suppress it or exclude it from evidence.

At Owens Law, P.C., we can take any of the following actions, depending on the specific facts and circumstances of your case:

1. Attack the reliability of the breath test. Many reasons exist why we may not be able to rely on the results of a breath test, like a faulty machine, improper administration, or health issues with the test taker.
2. Show the breath device was not properly calibrated. Each state has its respective laws on calibration, but it usually involves a certified forensic analyst and verification of the machine's accuracy.
3. Show the device was not properly maintained. Typically, the date and time of repairs and maintenance, as well as the nature and extent of and who performed the maintenance and repairs must be logged.
4. Show that there was a lack of training or an operator's error. Police must be properly trained to conduct breath tests. An untrained or uncertified police officer may not properly administer the test.
5. Prove records were not properly maintained. Records should be kept to show proper calibration and maintenance, and failure to keep those records updated can be used to prove the device was not properly calibrated or maintained as the law requires.

During the discovery phase of your criminal case, we will obtain the information and evidence we need to support arguments against the breath test's admissibility.

Contact an expert DUI Defense Attorney Today

You can have your day in court to challenge DUI charges regardless if you took and failed a breath test or refused one. With the right DUI defense lawyer in Atlanta, Georgia, you can be successful. Contact Owens Law, P.C. today by calling us at (678) 661-1DUI or filling out an online form to schedule a consultation. We will review your case and discuss your best legal options.