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What if I did the breathalyzer but the cop says I refused to take a breathalyzer?

Probably the most common question we get is from people who took the officer's breath test, but still had their license taken/suspended by a police officer -- and the officer claims they "refused" to take the breathalyzer.

The officer likely gave you a temporary permit that look like this one below. The form is known as the DDS Form 1205. Note that the officer checked "The driver refused to submit to the designated state administered chemical testing." (This means the officer asked for a breath, blood, or urine sample and you said anything other than "yes").

I took the breathlyzer, can they still claim I "refused" and suspend my license?

Here's where terminology matters. When police give you a breath test while you're on the arrest scene -- that test is NOT a breathalyzer. All handheld breath tests are called "Portable Breath Tests" or a PBTs for short. This handheld breath test (PBT) is different from a "breathalyzer" because a breathalyzer is a large, table-top machine that is only kept back at the jail or police station. When you've had your license seized and the officer claims that you "refused" to take the state administered test that means you refused a breathalyzer (not a PBT). In other words, the officer did not suspend your license because of the PBT refusal -- he's claiming you refused the breathalyzer (or a blood or urine test). 

What is the difference between a Portable Breath Test and a Breathalyzer?

PBTs and Breathalyzers are different in two respects: (1) the admissibility of the numerical results; and (2) the ramifications of refusing to take the test.

With PBTs: the numerical result is NOT admissible against you in court. (See Rowell v. State, 312 Ga.App. 559 (2011) (trial court erred in admitting numerical reading of alco-sensor during motion to suppress hearing. “It is well-established that alco-sensor results are not used as evidence of the amount of alcohol or drug in a person's blood. Instead, the alco-sensor is used as an initial screening device to aid the police officer in determining probable cause to arrest a motorist suspected of driving under the influence of alcohol. Thus, this Court has held that such information is not admissible even for considering probable cause.”). In shorty, all that is admissible against you in court for a PBT test is whether the result was positive or negative for alcohol. 

With PBTs: the ramifications for refusing the test are -- nothing! You have the absolute right to refuse the PBT. Your license will not be affected at all if you refuse a PBT. And, your refusal to do the PBT cannot be used against you in court in any way. That means the jury cannot be told about your refusal to provide a breath sample on a PBT. You should ALWAYS refuse PBTs.

With Breathalyzer tests: (1) the numerical result is admissible against you to prove your BAC; and (2) if you refuse a breathalyzer your license will be suspended for 12 months. 

What does it mean if the officer took my license and gave me this temporary permit? 

This means that your license is now suspended for 12 months! Yes, this Form 1205 is a temporary driving permit. But, it only allows you to drive for 45 days. On the 46th day, your 12 month license suspension kicks in.

You now have 30 days to try to save your license. It is critical to understand that you do NOT have 45 days to act -- you only have 30 days. If you do nothing, at the end of 30 days, you will have a 12 month license suspension.

What happens if I don't file an appeal (or get an ignition interlock) within 30 days of my arrest?

If you refused the test: if you refused the blood or breath test, and 30 days comes and goes without you doing anything, you will have a 12 month license suspension. You are not eligible to get a work permit no matter what. This is the nightmare situation. Don't let it happen to you, call us at 770-249-4405 before that 30th days runs out.

If you provided a breath sample over the limit: if you provided a sample over the limit, and the 30th day comes and goes without you doing anything, you will also have a 12 month license suspension. However, there's a big difference for you (since you did not refuse the test), you are eligible to get what's called an "ALS Permit." An ALS Permit is a limited driving permit (aka a work permit) that you are eligible for -- but only after 30 days of a full, hard license suspension. That means, if you had your license taken by the officer, and you are given a Form 1205 but do nothing for 30 calendar days -- you will get a 12 months license suspension. But, you can wait 30 days and go to DDS and get an limited driving permit, called an "ALS Permit."

Can I get a work permit after the 45th day?

Shockingly, no! Once that temporary permit expires, you cannot drive in any way whatsoever -- that means no work permit. This is an absolute nightmare situation to be in. Don't let it happen to you!

What if the officer took my license but did not give me the temporary permit?

This happens far too often. The police officer will seize a license, but fail to give you a DDS Form 1205. The question is: what do I do now? Can I do an appeal? Can I get the ignition interlock without DDS Form 1205? It is critical to call us at 770-249-4405 if this is your situation. We can guide you through your options.

 

This is your life. Let us fight for it.

If you are facing criminal charges, you are in the right place. Give us a call at 770.249.4405, or send us a message.

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