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Is there likelihood of (1) retaining my driving privileges and (2) receiving a dismissal of DUI following test refusal?

Smyrna, GA |

I was involved in a minor car accident near home. City police were called & arrived almost immediately. There were no passengers in my car & no injuries.
I recognized the officer-on-scene as being the same officer who'd harassed Me multiple times in the past. He has a history of harassing young women during c. 06-07 and was formally disciplined by the dept. for the misconducts.
The accident had already shaken Me and dazed Me.
Then, I'm approached by the officer who had a history of harassing Me & the other women. I was rendered very apprehensive, confused & intimidated by all this.
The officer says "I smell alcohol coming off you" & asks me to do a breathalyzer then a field sobriety test, I refuse both & was arrested right away. I've no priors & license was valid @ the time.

Roadway conditions were described as "wet", traffic was "heavy", it was dusk and "cloudy". I was charged with D.U.I and "Following Too Closely". The officer listed on the tickets was the "other officer" who arrived at the scene, not the one who has been disciplined for harassment. My license has never been suspended or revoked. I have no prior DUI, drug or Reckless Driving convictions. No "implied consent" was quoted to Me upon or before My refusals. I was not even asked why I refused either test. I was apprehensive and intimidated given the circumstances. I was very shaken and confused (before the officer with a "history" even approached me, and then shortly asked to submit to testing). I was arrested right away & watched my car towed. My license was taken from Me and I was given a paper stating that I could request an ALS hearing.

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Attorney answers 8


Since you refused to take the breath test, you need to (or better yet your lawyer) file a request for an administrative hearing within 10 days of your arrest or your license will be suspended for 12 months with no driving privileges. As to getting your DUI dismissed, more information would be needed to answer that question. Please feel free to contact me at 404-812-4305 if you would like to discuss your case in detail.


The answer is yes.
1. You could win the ALS hearing. The police have very specific things they must do prior to asking for a chemical test.
2. In Cobb County cases move quickly enough so that you can go to court in the criminal case pretty close to the time for the ALS hearing. Your attorney may have the opportunity to negotiate a dismissal or have a trial prior to an ALS hearing. If you win your case or it is reduced the refusal suspension is canceled.


There are any number of ways of attacking a DUI. Additionally, if the case cannot be beat, it may be possible to mitigate the charges and punishment you are facing. However, both fighting it and mitigating it are best done by a locally experienced DUI attorney. I suggest that you use avvo to find a few - most will offer a free consultation. Talk to a few on the phone and/or in person, and hire the one that appears to be the best fit. The attorney should also know what to do, if anything, about the involvement of the harassing officer. Good luck.

Jasen Nielsen


It sounds like there are some strong arguments to be made in your defense. However, an outright dismissal is not very likely. The very best thing you can do right now is to retain a competent, experienced DUI defense attorney.

If you like, I am available to speak with you today by phone or in person.

Paul J. Sieg

Potter Sieg, LLC Phone: 404-270-9289 Fax: 404-935-9308 Paul J. Sieg is a criminal defense and entertainment law attorney licensed to practice law in the State of Georgia. All information provided is based on Georgia law and federal law, where applicable, and is not necessarily directly applicable to any other jurisdictions, states, or districts. This response is not legal advice and does not create an attorney/client relationship. Rather, this response is in the form of legal education, and is intended to provide general information. Any specific concerns should be directed to an attorney who is licensed to practice law in your respective jurisdiction.


You should retain counsel asap for the administrative license suspension matter the others have written about. As to the charge itself, without a blood test, the prosecution would have to prove that you were a less safe driver. The accident itself may tend to support it, but the conditions are a mitigating factor, and juries like to see testing and field sobriety tests on camera to be convinced. A good DUI lawyer greatly increases the changes have either beating the charge in court or convincing the prosecutor to lessen the charge. However, you still are at risk of losing your license unless an administrative license hearing is requested asap.

The above information is general in nature. In order to obtain more specific and legal advice upon which to base your important decisions, please contact our office directly for a free phone or in person consultation. Robert M. Gardner, Jr. Hicks, Massey & Gardner, LLP 53 W. Candler St. Or 718 Oak St. Winder, Ga. 30680 Gainesville, Georgia (770) 307-4899 (770) 538-0555 serving metro Atlanta and all of Northeast Georgia Bankruptcy, Divorce, Personal Injury, Worker’s Compensation, Medical Malpractice, Adoption, Civil and Criminal Litigation


You need to file a 10 Day Appeal letter within 10 business days of your arrest to stop the administrative suspension of you license. Once that request is granted it will be possible to stop the suspension of your license. You definitely have a strong case because you refused the breath test, and all field sobriety tests.

James L. Yeargan, Jr. is licensed to practice law in the State of Georgia. All information given is based only on Georgia law, and is not directly applicable to any other jurisdictions, states, or districts. Any answer given assumes the person who asked the question holds a Georgia Drivers License, and this license is not a commercial drivers license (CDL). This response, or any response, is not legal advice. This response, or any response, does not create an attorney/client relationship. The response is in the form of legal education and is intended to provide general information. Any state specific concerns should be directed to an attorney who is licensed to practice law in that respective state.


First: You should retain the best DUI defense Attorney that is available to you because a complete Dismissal is highly unlikely.
Second: You should make sure to file a Request for a Hearing on the ALS Suspension Notice, the DDS Form 1205. This must be done in writing within 10 business days and include payment of $150 to the State. If you don't timely file (or have filed by your attorney) this request for a hearing - your DRIVERS LICENSE WILL BE SUSPENDED FOR 12 MONTHS. There is NO DRIVING PERMIT OR EARLY REINSTATEMENT OF YOUR DRIVING PRIVILEGES! Please, do not let the 10 day period pass without filing your request for a hearing. If you fail to file it and you drive, you will face the possibility of being arrested for driving with a SUSPENDED LICENSE and taken to JAIL.
Third: Based on the information in your question you may have several significant defenses to the DUI, with an Implied Consent issue being the most glaring. Additional defenses may be available, but you need to go over all of the facts and circumstances of your case (in detail) with a trained and experienced DUI Defense Attorney.
Fourth: and finally, don't try to defend yourself in court! You will find that the best investment you could make is to retain the best DUI Defense Attorney that you can. You will be facing an almost insurmountable mountain of issues that you don't have the training to handle. Remember the old saying, "he who represents himself in court, has a fool for a client!"
I hope this information has been helpful to you and Good Luck!!
George McCranie

The information provided in this response to a question is not legal advise and is provided only for general information purposes. My response should not be taken as legal advise as no attorney / client representation exists. Additionally, the information given in this answer is specific to the State of Georgia only and should not be applied to any other state.


Lots of concerns here...your narrative indicates nothing of the officer reading you an implied consent warning, so possible to have refusal evidence thrown out. If no implied consent, then no refusal and no administrative suspension. If implied consent was read and you refused, then you have to look at the 4th Amendment issue of probable cause to arrest. I assume the officer gave you a DDS 1205 temporary license, which requires you to request a hearing within 10 business days or your license is suspended for 1 year. Short answer,,, hire a lawyer THAT TRIES CASES in your jurisdiction asap.