HOW SOON MUST A DUI BREATH OR BLOOD TEST BE PERFORMED?
Posted by Ben Sessions | | DUI / DWI
With regard to DUI cases involving serious injuries or fatalities, O.C.G.A. § 40-5-55(a) imposes an additional requirement upon law enforcement personnel that blood, breath, or urine tests be performed as soon as possible.
O.C.G.A. § 40-5-55(a) requires that the state-administered chemical tests performed upon a DUI suspect “shall be administered as soon as possible to any person who operates a motor vehicle upon the highways or elsewhere throughout this state who is involved in any traffic accident resulting in serious injuries or fatalities.” This Court has interpreted this requirement of O.C.G.A. § 40-5-55(a) to mean that the state-administered chemical must be performed “as soon as practicable under the circumstances.” Seith v. State, 225 Ga. App. 684, 686, 484 S.E.2d 690, 693 (1997) (emphasis added).
In order to develop this issue, be sure develop a record as to:
- the timeline of arrival, arrest, reading of implied consent, and arrival at the testing facility,
- the number of officers on the scene,
- the tasks being performed by other officers, and
- other, closer facilities at which testing could be performed.
There is remarkably little case law on this issue, and the issue is of real importance in serious injury by vehicle or vehicular homicide cases. In these cases, the state will frequently attempt to rely upon retrograde extrapolation in an attempt to establish the level of intoxicants in a suspect at the time of driving. Performing the test sooner in time alleviates reliance of retrograde extrapolation efforts that is fraught with accuracy problems.