Challenging Blood Analysis and DUI Breathalyzer Tests

By: Atlanta DUI Lawyer Bubba Head, Veteran Criminal Litigation – Award-Winning Drunk Driving Lawyer and Co-Author of Book on Georgia DUI Law

When a DUI arrest is made, police will demand a blood alcohol content or breathalyzer test or a blood test from that driver. Most drivers arrested in Georgia are impaired by alcohol.

When no smell of alcohol exists on the driver’s breath, an officer asks questions about whether medications or recreational marijuana use has occurred. With or without a positive response, most officers will then ask for blood testing for quantitating the amount of possible drug impairment.

Breath and blood tests are instrumental when charging and sometimes convicting individuals of driving under the influence. In Georgia, after reading an implied consent notice to the individual who is already in custody, a police officer will ask for one or more types of tests.

Blood, breath, or urine tests for a DUI in Georgia are being requested under what are known as “implied consent” laws. These statutory provisions are found in OCGA 40-5-55 and 40-5-67.1.

A DUI attorney who is a true expert in drunk driving defense will know the science behind breath tests. This includes knowing how to calculate a driver’s amount of alcohol using the Widmark formula.

This mathematical formula has been used to estimate a person’s approximate blood alcohol concentration since the 1930s. The rough calculation is made by using the test subject’s weight (lean body mass), gender, and the start and ending time of alcohol consumption.

This will yield his or her approximate BAC chart, over time. A constant, standard elimination rate of 0.015 grams percent of ethanol per hour is assumed.

The machine uses infrared spectrophotometry to detect the presence of alcohol in a person’s system. In simple terms, a light source of known intensity passes through a chamber after somebody blows into the breath machine. The alcohol molecules absorb the light.

The programming of the device assumes that the less light hitting the detector means a higher BAC level. If no drinking alcohol is present, the machine should not give a numeric reading.

Under OCGA 40-6-392, officers and others at some law enforcement agencies are trained to obtain the sample for laboratory analysis (in the event of blood) or by way of an Intoxilyzer 9000 test that measures breath to determine how much ethanol (alcohol) is in your deep lung, exhaled air.

If the detained driver agrees, then that person will usually go to the police department or to the jail location, where certified breath test personnel can administer an alcohol breath test. This requires the arrested person to forcibly breathe her or his deep lung air into the breath collection tube of the CMI Intoxilyzer 9000.

When the detained driver refuses to “blow” into the Intoxilyzer, the law enforcement officer then requests a blood test by way of implied consent. If consent for a blood draw is denied, the officer can then seek a judicial search warrant that authorizes police to forcibly take your blood sample.

If drugs are the suspected impairing substance, a phlebotomist or nurse will be sought for a blood extraction. Fear of needles can be a barrier for many detained suspects. Yet, police now have statutory authority to seek a search warrant for blood is the person is unwilling to consent to the blood draw.

Such drivers may then face an administrative driver’s license suspension for refusal to submit, PLUS face a numeric blood test result that reveals a BAC level over the legal limit (or that contains THC from the driver’s prior cannabis use or even a prescription drug concentration). Below, more information about this ALS suspension and the 30-day time limit.

When an Officer Can Request a Blood Test. If an officer has probable cause to believe that a person is under the influence of alcohol or drugs, he or she will subsequently arrest the person, and then read the applicable part of the Georgia implied consent law.

Three different implied consent warnings may apply: underage drivers are held to a 0.02 grams percent BAC, a commercial motor vehicle driver behind the wheel of a regulated truck, bus or passenger van is held to a 0.04 grams percent BAC level, and all other adults (age 21 and over) have a 0.08 grams percent permissible BAC.

A blood test can be given basically anywhere. The GBI has approved “kits” for collecting blood and urine tests. These boxed evidence packages include several pre-packaged parts that are designed to assure proper collection, inversion and preservation of evidence.

It needs to be drawn by a person who is qualified by Georgia law to draw “legal blood,” e.g., a phlebotomist, a medical assistant, a nurse, an EMT licensed by the Secretary of State of Georgia. Georgia mandate special training and education on how to safely draw blood.

An area supervisor from the Georgia Department of Public Safety periodically checks all the State’s Intoxilyzer 9000 devices. He or she verifies that all parts are attached and in good working order. These procedures are cursory, at best, but satisfy the rudimentary requirements of O.C.G.A. 40-6-392 for the quarterly inspections of forensic breath alcohol devices.

When challenging DUI blood and breath tests, it is important to keep in mind that historically, blood tests are more accurate than breath tests, because a breath test is an indirect way of trying to measure how much alcohol is in somebody’s blood. Jurors are familiar with hospital and medical blood tests, and ten to believe this type of forensic testing result.

However, blood testing is not perfect. There are different types of interference that can be construed as alcohol. The GC-MS, GC-MS-MS (or similar) analytical machine must be properly calibrated. Blood testing alone, simply by the State offering a numeric result on a piece of paper, is not conclusive in and of itself as a determination of how much alcohol or concentration of a drug is in someone’s body.

Blood tests cannot necessarily determine impairment, they can only determine the quantity of what is in somebody’s blood and specifically which drug is in somebody’s blood. GA law does not outline any justifiable reasons for refusing a blood test except in DUI cases. Usually, your REFUSAL can be put into your criminal trial, and the prosecutor will argue that your reluctance to give a test shows a “consciousness of GUILT.”

In fact, the arresting officer who has arrested you will fill out a DDS 1205 form, sign it, and deliver it to you. Then, he or she will seek to ADMINISTRATIVELY suspend your right to drive in Georgia for any refusal of his or her designated tests.

This happens BEFORE your criminal case ever gets underway. A 30-day window is all that the law in Georgia allows. You must either appeal or install a special DDS-approved interlock, in accordance with the rules found in OCGA 40-5-64.1.

DUI lawyers near me can help you review two options that most Georgia licensees have for saving a limited driving privilege. Don’t WAIT! Protect your right to drive.

A person can refuse and has every right to refuse, a blood draw for whatever reason. That is not a legally justifiable defense, but a person can refuse a blood test for whatever reason they want. The arresting officer then can give an affidavit or sworn testimony for a search warrant and have medical personnel forcibly remove blood, if needed.

If an attorney in Atlanta wants to start the process of challenging DUI blood and breath tests, the first thing he or she will need to do is file certain discovery and disclosure motions. Through an open records request, he or she can procure analytical findings from the Georgia Bureau of Investigation (GBI).

The litigation package used by DUI specialists will allow criminal defense attorney near me to see the results that were tendered by the State, allow review of the chain of custody, plus see how the blood was kept (i.e., under refrigerated conditions or not), plus who drew the blood. Next, he or she will demand to see the gas chromatograms from the GBI equipment that determine the measurements of how much ethanol or alcohol is in somebody’s blood.

Challenging Atlanta DUI blood and breath tests is impossible without first understanding the SCIENCE behind them. Georgia DUI lawyer and co-author of the best-selling book on Georgia DUI laws, Bubba Head is Board Certified in DUI Defense.

His two law partners, Larry Kohn, and ex-cop Cory Yager are also experts on the “science” of DUI testing and measurement, by virtue of their specialized training with scientists and forensic instrument instructors. Plus, unique in all of Georgia, all three partners are drunk driving book authors.

If you want to know more about challenging blood test and breath test forensic results, call our law firm speak to an experienced Atlanta DUI lawyer. Our law office provides a FREE lawyer consultation and can structure payment plans for most clients. (404) 567-5515.