DEFENDING THE REFUSAL AND DUI BLOOD TESTS OBTAINED BY SEARCH WARRANT IN YOUR ATLANTA DUI CASE

By Ben Sessions on September 17th, 2015 in DUI / DWI

Defending against DUI blood tests is one of the most intimidating pieces of evidence for DUI defense attorneys. In most metro-Atlanta jurisdictions, we are seeing an increasing number of DUI arrests that involve refusal of the state-administered blood, breath, or urine test followed by the officer obtaining a search warrant and a blood test.

The use of search warrants to obtain evidence in DUI cases has been a focus in Georgia and nationally for years. The National Highway Traffic Safety Administration made the use of search warrants in DUI cases a priority years ago:

The State is attempting to obtain and use the blood test result in accordance with O.C.G.A. § 40-5-67.1:

(d.1) Nothing in this Code section shall be deemed to preclude the acquisition or admission of evidence of a violation of Code Section 40-6-391 if obtained by voluntary consent or a search warrant as authorized by the Constitution or laws of this state or the United States.

Here is the problem with dealing with this evidence.

Georgia law requires you to submit 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 the required testing may be offered into evidence against you at trial.

O.C.G.A. § 40-5-67.1.

Every DUI lawyer that accepts the responsibility of defending these cases must appreciate the difficulty associated with the admissibility of both the refusal to submit to testing and the admissibility of a blood test drawn pursuant to a search warrant. On the one hand, the jury gets to hear that the defendant wanted to prevent people from knowing what their blood-alcohol concentration was. On the other hand, the jurors will know what the blood-alcohol concentration is. Obviously, we will deal with very few of these cases in which the blood-alcohol concentration is below the legal limit.