Asked 5 months ago - Marietta, GAFlag
My friend was in a car crash where he hit a pole. He was arrested and the EMT said that he needed to be taken to the hospital. He says that he cannot remember if the police took blood or not. The incident report does not state that they took blood, however he was charged with a DUI less safe. They did state they smell ed alcohol, but he claims that he lost control of the car and it was not because of the alcohol being that he only had a couple of drinks. If he did not get blood taken is there a way he can fight that charge?
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Since he is charged with a less safe DUI and not a specific BAC level, they probably did not take a blood sample. However, they can still prove DUI based upon the odor of alcohol on his person, evidence of drinking in the car (e.g., empty bottles, etc.) and his inability to control his vehicle. They can also attempt to get medical records in the case and use them against him.
There are defenses to a less safe DUI. The State must prove beyond all reasonable doubt that the defendant was driving a moving vehicle while under the influence of alcohol or a drug to the extent that it impaired his driving abilities in some way. If there are other plausible reasons that he lost control of the vehicle (e.g., wet roads, an obstruction in the road, etc.), he could very well be able to defend against this charge. Moreover, if he truly only had a couple of drinks, those medical records may prove exculpatory. Most medical professionals are going to do a drug and alcohol screen prior to treating the patient in these instances so that they do not give the patient an overdose of a medication or something that is contraindicated with what they have consumed. Your friend needs the assistance of an experienced DUI attorney to help with his defense.
He can absolutely fight the DUI charge. He was likely charged with only less safe because they did not request a chemical test, or if they did, the results are not in yet. Under certain circumstances, officers in Georgia can take a blood test even if someone is unconscious.
Where is your friend's case pending?
I agree with Evan. Cases can be fought, even when there is a blood test. It comes down to whether the officer followed all the rules and procedures required when someone is charged with DUI. It will also come down to the results of the blood test itself. Nothing should ever be assumed. Your friend needs an attorney.
If the report doesn't mention that blood was drawn and he was only charged with Less Safe, it means that most likely the police did not request a test. However, the State could still possibly subpoena the medical records if the hospital independently tested his alcohol concentration for diagnostic purposes.
Your friend can certainly fight this charge. Feel free to have him give me a call for a free consultation to discuss all the details of his case and possible defenses.
All three of these excellent lawyers are correct. A less safe DUI is a DUI charge based on impairment and not a blood test result. A DUI based upon a blood test result is called a "per se" DUI and is essentially the mirror image of a less safe DUI. A per se DUI Is based only on the blood test result if over 0.08 grams regardless of impairment. In other words, in a per se DUI, you can be unimpaired yet still receive an alcohol DUI based solely on the level of alcohol in your blood. In some jurisdictions, police will wait to charge a person with per se DUI until blood test comes back from the GBI crime lab which can take between 30 and 90 days. It is definitely good advice to hire an attorney.
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