Ever heard the DUI slogan broadcasts on the radio “Over the Limit, Under Arrest.”  Does that mean if you blow under the legal limit you will not be arrested? The legal answer is no, but the public does not know that is not true.  The public believes and the government’s advertisers keep saying “Over the Limit, Under Arrest” on radio and T.V. Georgia law requires that you have to be under arrest for DUI less safe before you can even blow into the State Administered Breath Test which is usually kept at the county jail.  So the marketing slogan should  be “Had any ale, going to jail” or “Under the limit, Under arrest.”

“Even when an officer properly gives the implied consent notice[Georgia Statutory DUI Breath Test Rights], if the officer gives additional, deceptively misleading information that impairs a defendant’s ability to make an informed decision about whether to submit to [DUI] testing, the defendant’s [DUI breath] test results or evidence of his refusal to submit to [DUI breath] testing must be suppressed.”  State v. Chun, 265 Ga. App. 530, 531 (2004), quoting State v. Peirce, 257 Ga. App. 623, 625 (2002).  In Chun, the DUI Officer’s statement to the Defendant was that if she “refused the chemical test, her license would be suspended for one year; that if she took the test and registered 0.08 or higher, her license would be suspended; and, even if she took the test and registered lower than 0.08, her license could be suspended if she was convicted of DUI at trial.”  The Court of Appeals held that the Officer’s statement was not false or misleading.  By contrast, in Peirce, the Officer stated to Defendant that if he refused to take a breath test his Texas license would be suspended.  The Court of Appeals held that the information given to the driver contained substantial misleading, inaccurate information and confused him as to his implied consent rights, and thus the test results were inadmissible because Georgia authorities have no ability to suspend a Texas driver’s license.

In-State v. Rowell A09A1390 (July 16, 2009), the Officer told Defendant, “Well, you know if you blow under the legal limit I can let you go home to your son, and everything will be fine.”  In Rowell, the Court of Appeals referred to State v. Highsmith, 190 Ga. App. 838 (1989) which held that a suspect may revoke his agreement to take the DUI breath test under the Georgia implied consent warning.  Further, the Court of Appeals in Rowell referred to Howell v. State, 266 Ga. App. 480 (2004), which held that the procedure utilized by the officer in attempting to persuade a defendant to rescind his refusal must be fair and reasonable.  Applying these precedents, the Court of Appeals in Rowell agreed with the trial court that the procedure utilized by the deputy to persuade the Defendant to rescind her refusal – telling her that she could go home to her son if she blew under the legal limit – was not fair or reasonable since she had legally already been arrested for DUI less safe driving.