Georgia DUI Cases of Note

  

Birchfield v North Dakota – Need a Warrant for Blood test but just an arrest for Breath test

Saturday, June 25, 2016
DUI blow or go to jail for obstruction

 On June 23, 2016, the United States Supreme Court ruled in Birchfield v. North Dakota that the Fourth Amendment permits warrantless breath tests incident to arrest but not warrantless blood tests. This effectively means that police only need to arrest you for DUI to obtain a breath test and if you refuse or can not produce a breath sample you can be charge with a crime for refusing if your state has such a law or even charge with misdemeanor obstruction of a law enforcement officer if your state does not have a refusal law.  You do not have to give the police consent to take your breath sample for a DUI unless your state has other laws that protect you. If it does you can be sure that your legislature will soon repeal those laws. 

The Supreme Court found that a person has no reasonable expectation of privacy in a breath because you have to exhale to live. However, this ignores that breath test devices don’t just test your breath but require to maintain a certain blow rate for a certain time period. This is not medically possible for everyone and may result in people with colds, asthma and other breath conditions to go to jail for not just saying they will not blow but because they can not physically blow hard enough.  The same could be true for people who do not speak English, are too scared to speak or are injured or confused after an accident.  The Supreme Court ignores that most breath test occur at a police station and not at the side of the road except in Arizona and California where there is both the time and the means to obtain a warrant for breath. 

As for blood tests, you can refuse and can not be punished either civilly or criminally. The police must obtain a warrant for blood. This means that most of the Implied Consent laws in this country that can suspend your license for refusing a blood test are unconstitutional. 

This is a landmark ruling in DUI law in this country and the implications are still being considered. 

-Author: George Creal



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    George C. Creal, Jr. is a trial lawyer with 18 years of courtroom experience. He is one of only 6 Metro DUI lawyers with both an AV Preeminent rating from Martindale.com and a 10.0/10.0 Superb rating on Avvo.com.  With over 100 not guilty jury verdicts under his belt, George knows how to convince a jury that the State has not proven his client guilty of DUI beyond a reasonable doubt.
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    No legal advice should be obtained from the web site alone. George C. Creal, Jr., P.C. is Georgia Professional Corporation authorized to practice law in the State of Georgia only and all information contained in this web site is intended for use for DUI arrests occurring in the State of Georgia. Individuals with DUI from outside the State of Georgia should contact a licensed attorney in the state of occurrence of their DUI. Copyright © 2014 George C. Creal, Jr. P.C.
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