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Can you rescind a refusal to take a breath test? |
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Tuesday, 18 September 2007 |
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Can you rescind your refusal to submit to a DUI breath or blood test
and still give valid consent to a DUI chemical test? Many DUI
police officers will tell you no, but the Georgia Court of Appeals says
maybe. In order to be effective, a subsequent consent after a refusal
to take
a state-administered DUI chemical test must be made: (1) within a very
short and reasonable time after the prior first refusal of the DUI
test; (2) when a DUI test administered upon the subsequent consent
would still be accurate;
(3) when DUI testing equipment is still readily available; (4) when
honoring the request would result in no substantial inconvenience or
expense to the DUI police; and (5) when the individual requesting the
test
has been in the custody of the arresting officer and under observation
for the whole time since the DUI arrest. An initial refusal to submit
to an
DUI intoxilyzer 5000 test may be properly rescinded, if such
rescission is made
in accordance with the foregoing guidelines. Dep't of Pub. Safety v. Seay,
206 Ga. App. 71 (Ga. Ct. App. 1992). This is important because it
maybe a basis for excluding a refusal from consideration by a DUI
jury. Many Metro Atlanta DUI juries will hold a refusal to submit
to a DUI breath or blood test against a DUI Defendant in Court.
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