Georgia’s Amazingly Dumb DUI Loophole: I Was Too Drunk to Consent to the Blood Test
File this under Incredible But True: Drivers in Georgia are pleading not guilty to DUIs. Their excuse: they were too drunk to consent to the breath and blood tests that confirmed that they were too drunk to drive.
The worst part is that the Georgia Supreme Court has given its blessing to the DUI loophole. Earlier this year it ruled that consent has to be “knowingly and intelligently” given, and it stands to reason that an intoxicated driver is not in any shape too consent to a self-incriminating test if he or she is not in any shape to drive a car.
The argument seems to be winning cases and getting defendants off in several counties. In one case a suspect blew .225 but the judge threw out the evidence, noting that the driver might have been rattled by the accident he was involved in.
It’s understandable that offenders’ rights have to be protected – there are people arrested who are vulnerable, who are genuinely unaware of their rights, and who have language or cultural problems which present challenges to their proper defense. But losing the blood test means there is no objective proof of intoxication; courts have to rely on the report of the officer’s Field Sobriety Test (FST), his or her own impressions of the accused. Dashboard video can also be used, but a blood test result over .08 is the only incontrovertible evidence of drunkenness. Which means that a lot of drunk drivers are going to go back on the road.
Two fairly ridiculous effects could come of this DUI loophole if it continues to work:
- Extreme drunkenness (usually .16 or over) will never be proven, as it requires a measured blood alcohol concentration (BAC) level. Georgia does not have an “extreme DUI” provision, but other states do. In any case, it could be harder to prove that an offender was very intoxicated, a fact which should have bearing on punishment.
- It could even lead to prosecutors arguing that an offender was less drunk than he or she appeared, in order to establish the ability to give consent.
The whole thing is reminiscent of the lawyer who requests mercy for a defendant who murdered his parents, on the ground that he is an orphan.
Until this absurdity gets sorted out, Georgia will be one of the better places to drink and drive in this country.