DUI Breath Tests are Really Hard to Beat

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Defendants who fail a blood or breath test are almost certain to be convicted of DUI.  Those who refuse a breath test have a substantial chance of acquittal.

I take an empirical approach to the law.  The best predictor of what a jury will do is what past juries have done in similar cases.  The best predictor of what a judge will do is what he has done in similar cases.  This approach informs a realistic, pragmatic style of advocacy.  Clients who know the mean outcome and differentiate themselves from run of the mill defendants can consistently achieve above average results at very low risk.  Conversely, defendants who shoot for the moon often end up losing jury trials and making their situation worse.  This does not mean that jury trials are always a bad idea.  It means that jury trials are risky and should be undertaken only with an empirically informed understanding of the probability of acquittal and the downside risk.

In Georgia, a Defendant can be convicted of “per se DUI” if his blood or breath test result was greater than or equal to 0.080%.  Defendants whose results exceed this threshold are almost always convicted of DUI.  I studied the case outcomes of an experienced Henry County attorney with an active DUI practice.  I attempted to locate every one of this attorney’s DUI cases in the Henry County State Court which was filed after March 15, 2015 and concluded by June 5, 2017.  No cases were intentionally excluded from the sample.  However, the data may be incomplete because some records may have been sealed and the clerk may have coded some cases under the wrong attorney.  I triple checked the results, but cannot completely exclude the possibility of compilation error.  Accordingly, these data should be viewed as a rigorous estimate of the outcomes of a single, experienced DUI attorney in the Henry County State Court.

Case Type DUI Conviction Reduced Acquitted/Dismissed
BAC >= 0.080 27 0 0
Other Adult DUI 27 10 11
Under 21 3 0 1

The data are striking.  Every defendant who “failed” a blood or breath test was convicted.  This does not mean that every future defendant who fails a chemical test will be convicted of DUI, but it does show that the odds are bleak.  There are three categories of per se DUIs that are potentially beatable: (1) cases where the result was under 0.085% and therefore within the margin of error; (2) cases where the chemical test is not admissible at trial because the officer stopped the defendant illegally or failed to read Georgia implied consent; and (3) “parking lot cases” where an officer approaches a parked or stopped car and it is unclear what the driver’s BAC was when he stopped driving.  If your case falls into one of these categories, a jury trial might be a good idea.  However, if your BAC was over 0.085 and none of these situations apply, you are almost certain to be convicted.

Cases without an illegal blood alcohol concentration are much easier to beat.  Indeed, 46% of such defendants escaped a DUI conviction.  Certain DUI defendants have an even better chance of acquittal.  Many of the 48 adult defendants who did not fail a breath test were, nevertheless, visibly intoxicated.  This category is subjective, but real.  A defendant who cannot walk straight, talk calmly or stand without swaying will probably be convicted of DUI whether or not a breath test is introduced.  I have seen enough DUI cases to know that many (perhaps 25-35%) involve obvious intoxication.  If we assume that these cases resulted in conviction by plea or trial, then the acquittal rate for cases where the defendant refused a chemical test and was not obviously intoxicated would be roughly 69%.

If you had three or four drinks, are not a lightweight, and did not fail a chemical test, you can probably beat a DUI charge.  However, if you took and failed a chemical test, and do not fall into one of the three categories described above, your best strategy is to accept responsibility and attempt to minimize the consequences of conviction.

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