What happens if I’m arrested for DUI, asked for a breath sample, and I provide only one sufficient sample?
This is an interesting set of facts which does arise from time to time. This happens usually where you’ve been arrested and put in front of the breathalyzer machine at the police station and you’ve given one sample that was sufficient for the machine to register your BAC. But, for whatever reason, you didn’t blow hard enough to register a sufficient sample on the second attempt. Often the police officer will become frustrated with you and may even claim that your refusal to provide a second sample “is a refusal” — and may even seize your license and purport to suspend it.
Can Police claim that failing to provide a second sample is a “refusal” and suspend your license?
The short answer is: No! Thankfully, the Georgia Legislature created protections for anyone who provides one sufficient sample. It appears in OCGA 40-6-392(a)(1)(B):
In all cases where the arrest is made on or after January 1, 1995, and the state selects breath testing, two sequential breath samples shall be requested for the testing of alcohol concentration. For either or both of these sequential samples to be admissible in the state’s or plaintiff’s case-in-chief, the readings shall not differ from each other by an alcohol concentration of greater than 0.020 grams and the lower of the two results shall be determinative for accusation and indictment purposes and administrative license suspension purposes. No more than two sequential series of a total of two adequate breath samples each shall be requested by the state; provided, however, that after an initial test in which the instrument indicates an adequate breath sample was given for analysis, any subsequent refusal to give additional breath samples shall not be construed as a refusal for purposes of suspension of a driver’s license under Code Sections 40-5-55 and 40-5-67.1. Notwithstanding the above, a refusal to give an adequate sample or samples on any subsequent breath, blood, urine, or other bodily substance test shall not affect the admissibility of the results of any prior samples. An adequate breath sample shall mean a breath sample sufficient to cause the breath-testing instrument to produce a printed alcohol concentration analysis.
It may be surprise to some, but police sometimes make mistakes. They may have suspended your license even though you provided an adequate breath sample. If that has happened to you, it is absolutely critical that you call us asap at (770) 600-1241. (Also, take a look at our page, “The Police Took My License, What Now?”)
  |
  |