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Is it possible to escape jail for DUI 1st offence when refused breath test and told the police officer about havnig 2 beers

Atlanta, GA |

I was asleep at the wheel at a signal and accepted to all the field tests and was hesitant to breath test told the officer that I am unable to decide and he can do whatever he feels right, to which the officer constued it as REFUSED. I told the office that I had a couple of Chimay beers before half an hour. There are no other vehicles or public damage involved. I stayed in the lockup from 2AM to 4 PM. Is it possible to contest and win? or is it possible to avoid the mandatory 24hr jail? How would this affect my job situation? What is the most likely punishment I would end up with?

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Attorney answers 6

Best Answer

This response is given for informational purposes only.

AVVO is a great resource for the public, and particularly those in the public who are confronted with legal issues, like you, to interact with attorneys on an informal basis, hopefully in order to get you pointed in the right direction with your legal issue(s). Then again, it is a means for lawyers to raise their profiles and, essentially, advertise their services online for free, such that THAT, and not the substance of their advice, becomes what is important. It seems like you had a lot of specific questions, but have not had much of a specific answer here yet, so let me try to address your specific concerns:

First, it is impossible at this point to know whether you are capable of winning a trial, even with the details you have offered. Your admission that you had had a couple of beers does not help your case, but does not necessarily doom it. Your case will hinge on specifics which even you might not know at this point, because the arresting officer's report, which likely will give you a preview of his or her testimony, as well as any recordings (e.g. video/audio from an officer's dashboard cam) of the incident will be crucial. Can you contest the charge(s) and win? Maybe, but any competent lawyer would tell you they need more facts before making that assessment.

Second, avoiding jail time. It depends on the court you are in. Some jurisdictions in and around Atlanta will generally let you slide on additional jail time, even with a guilty plea on a DUI. Some might not enforce it when the defendant pleads guilty, but might assess the dreaded, unofficial "trial tax" on someone who takes the case to trial and loses. Then there are some counties which just will make you do the first 24 hours in jail, basically without exception. Here again, one more fact (where you're charged) is needed before giving you an informed analysis.

As far as your job situation, I would have to ask, what's your job? A DUI can affect a person's job if, for instance, they have a job which requires some sort of bonding or security clearance, of if driving is part of the job, but for others, it is inconsequential, beyond the time lost at work, dealing with court appearances and/or punishment-related chores (like visiting your probation officer).

It's impossible to predict the "most likely punishment" in your case without knowing some of the things I've already mentioned and some more important details. For example, where are you charged? What is your criminal history like (if any)? Are you over 21 (and were you when you were arrested for DUI)? What are the relevant facts of your case, as they have been (or soon will be) presented by the state?

Certainly, the best way to minimize the impact of the arrest on your life, be it by way of trial, plea or whatever, is to consult an attorney about your options and your questions. You already have or soon will have a flood of mail from a number of firms which handle DUI cases. You will get plenty of advice from attorneys in this forum as well. In the end, DUI's are not easy cases, but they are the type of case than an experienced, competent criminal defense attorney can handle and handle well. Therefore, your job is to sift through all those DVD's and pamphlet's about knowing your rights, take in all the recommendations from friends and neighbors who know lawyers who do this kind of work and find an attorney with whom you are personally comfortable and who levels with you about the process which is very accurately explained by my colleague from Georgia, above.


It is possible to avoid jail time on first offense in the City of Atlanta. To begin with, your attorney needs to send a "10 Day Letter." Because you refused the breath test, your license will be suspended for a year unless the letter is sent. It is best to have your attorney send the letter because the letter requests a hearing in which you will need representation. Once the license hearing is resolved, you will be able to continue to drive. As for possible punishment, it depends on the results of my investigation. We may be able to get the case reduced to a lessor charge such as reckless driving. Whether a case can be reduced depends on the facts of your case. I would be happy to discuss your case and let your know exactly what is likely to happen. Richard Lawson 404-816-4440


You cannot get answers to these questions here. Far more information is needed, including information you don't have at this time. The consequences of a DUI can affect the things you mentioned and many others. You need an experienced DUI lawyer to represent you. Check out the link below for counsel.


Most reputable DUI defense attorneys offer a free consultation where they will give you a "10 day letter" to preserve your right to the administrative hearing and review your case with you. You should interview a couple of attorneys since we have different approaches and strategies to DUI defense and different fee structures. An attorney cannot tell you whether there are issues sufficient to contest your DUI until after reviewing the specific facts in your case, including the identity of the arresting officer, any witness and whether and how the officer conducted field sobriety evaluations as well as the original bases for the stop.


Of course it is possible to contest this case and win - but there is never a guarantee of a particular result, so beware of any promises! Even if you are convicted, many judges in Atlana or Fulton County would not require any additional jail time.
Take the ten business days (basically two work weeks) to interview experienced DUI lawyers, and find the one you are most comfortable with - you are trusting him or her with a lot.


Georgia law requires everyone convicted of a first DUI to serve a total of 24 hours in confinement. Different courts handle that jail requirement differently, so it's difficult to tell you what will happen for sure in your situation. All of these questions are great starting points to discuss with a potential DUI defense attorney. You need to find the right attorney for you; ask your friends and colleagues for a recommendation, and meet with attorneys until you're comfortable with one (it's a little like picking out a doctor; you're going to have to discuss some uncomfortable issues, and you can't be embarrassed about it). You only need to worry about punishment if you're convicted of the DUI; a good attorney can help you avoid conviction.