Is it a violation to ask me to submit to a BAC test and tell me refusal has negative consequences never hearing my rights (after being put into custody)?
I get this question allot in my criminal practice, because you always see it on TV. Miranda rights are given so that if an arrested person makes or signs a statement against their interest, it can be used at trial. Many times, the police arrest a person with evidence, and don't need or care about that person's statement. Thus, no Miranda rights are given. DUI law centers more on the implied consent rights given to a person when arrested for DUI. They are asked to submit to a urine, breath, or chemical test. If they refuse, his or her license can be suspended. The reason for this is that a driver's license is considered a privilege, not a right under Georgia law. You refuse, you loose a privilege, not a right. Small distinction, but important. If you refused a test, and received a yellow piece of paper the officer said could be used to drive on until court, you need to see a lawyer immediately to make sure that you do not loose the privilege to drive for a year or more by not requesting an administrative hearing on your license.
Unlike what you see on TV - Miranda Rights are NOT REQUIRED to be read to you when you are arrested. In a DUI case, your GA implied Consent Rights should have been read to you (as soon as possible) after your arrest for DUI. It is not necessary to be given the Miranda warnings until the State seeks to question you about the charge after you arrest while you are in the custody of the State. Many people realize the Implied Consent Rights read to them are not the Miranda Warnings and are confused. Implied Consent basically says that if you are requested to take the State Test (Blood, Breath, Urine) and REFUSE, your GA Drivers License will be suspended and your Refusal used against you in Court. I would advise you to discuss your case with a qualified and experienced DUI Defense Attorney ASAP. If you REFUSED the test and a DDS Form 1205 was filed - you only have 10 business days to Request a Hearing. If you don't, your license will be Administratively Suspended by the State. Get to a DUI Attorney ASAP!! George McCranie IV www.mccranielawfirm.com
It appears that the officer read you the implied consent notice. That is the warning that you are to be given by law prior to the officer's request that you perform an intoxilizer test. Miranda only applies when you are in custody and the officer is questioning you about the incident.
Even so, you may have a defense to this charge. DUI is a very technical area of law and there are many areas where officers mess up. For instance, there are certain standards that an officer must follow when conducting field sobriety tests. Often times they do not follow these standards. Only an experienced DUI attorney is going to be able to tell you whether you have any defenses to this charge. I am a former Paulding County prosecutor and would be happy to help you with your case. Call me if I can be of assistance.
Allen R. (Rusty) Knox
125 TownPark Drive, Suite 300
Kennesaw, GA 30144
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