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By: William C. Head, Criminal Defense Attorney, and ABA Board-Certified DUI Attorney
What is always at stake — in every American court jurisdiction — under implied consent is the continued ability to use a person’s driver’s license. The arrested drunk driving suspect, for a DWI-DUI-OUI-OVI refusal to take the implied consent test, risks either losing the right to drive (at a minimum) plus (in some states) a monetary penalty. In some states) in addition to being charged with driving while intoxicated in the criminal case, he or she can also be charged with the crime of refusal to submit.
Even worse in about a dozen states, and this trend is GROWING, all of the foregoing administrative and criminal sanctions can be imposed plus the driver who denied the implied consent samples can be required to serve either county jail time or state prison time. A first DUI offense is usually treated more favorably than a 2nd DUI.
From a violation of a state’s implied consent laws, driver sanctions (usually administrative in nature) of their right to drive, and possible incarceration may occur. While most states have set up separate administrative courts to process implied consent cases, a few states roll this part of a driving under the influence case into the criminal court handling the DUI criminal case.
Your Driver’s License Is at Risk, at a Minimum, and Possibly Your Freedom
The phrase “implied consent” means that these implied laws (which were originally not written into the Code) grew out of legal fiction, created by states in the 1940s and early 1950s. Simply stated, police took the position that (since you were using State roads) you had implicitly (impliedly) AGREED (when suspected of intoxicated driving) to give a sample of your blood, breath or urine, for use against you in the criminal case for operating while intoxicated.
Ultimately, each state has formalized its statutes on implied consent, to call for (at first) a driver’s license suspension or revocation. While the terms “suspension” and “revocation” are similar, the word suspension generally means taking away the right to operate a vehicle for some period of time. Revocation usually means canceling the person’s license entirely, and requiring that person to re-apply, when later eligible.
Implied laws are stated in each state’s statutes and vary widely in their wording and provisions. All require that an officer has made a lawful arrest for impaired driving, even though this legal issue (at the administrative level) does not have to be proven beyond a reasonable doubt. So, many states’ implied consent administrative law processes (California, Florida) are a joke.
Over 90% of all litigants lose the right to drive, administratively, and this loss of driving privileges can continue even when the criminal case gets totally dismissed or acquitted.
The consent laws in each state are tied to state legal provisions calling for how to sanction a driver who is written down and a “refusal” to test, after being notified of the state’s legal obligation of an arrested DUI-DWI driver to submit to testing of bodily substances or breath.
Once a police officer makes an arrest for drunk driving, the detained driver is notified of a state law that requires his or her post-arrest compliance with taking a state “forensic” test of breath, blood, or urine. Implied consent laws all carry consequences for NOT complying with implied consent testing.
The minimum sanction is taking away the right to drive for some amount of time. Over half the states add a requirement for only being allowed to drive with an ignition interlock device, that prevents the vehicle from starting if alcohol is detected.
The implied consent law of each state controls all aspects of post-arrest rules and procedures, for police compliance with statutory and constitutional laws.
Some states now have added either a financial assessment and/or jail time, for a DUI refusal. Most states (e.g., Georgia and Alabama) notify the arrested driver verbally of the mandatory testing, but some also provide both verbal and written “warnings” to the arrested DWI-DUI driver (e.g., North Carolina and Kansas).
Implied consent laws are connected to drunk driving and drugged driving, in America. An implied consent definition is hard to put in 50 words or less, so this article is longer. These DUI-related laws, in current times, have been written up, enacted into law, and formalized into complex and sometimes illogical state laws.
An implied consent law means that a detained drunk driver is being notified of the legal necessity of submitting to forensic testing or losing the right to drive, by virtue of administrative driver’s license suspension (or revocation) action. Because the arresting officer provides a verbal “warning” about the driver’s license consequences of a DUI refusal, many new clients ask our DUI defense lawyers, “What is the implied consent law?”
Implied consent law is in place to administratively SANCTION a driver (through taking away driving privileges) who will not willingly take the requested test of his or her blood, breath, urine, or other bodily substances, so that police can determine the extent of impairment.
A growing trend of states criminalizing implied consent violations may change your State’s implied consent law in the coming decade. He or she who consents (and gives the police more harmful evidence to use against them) is treated better under consent laws, and may not face prison, in several jurisdictions where state prison time is handed out for a refusal to submit to implied consent testing.
A DWI attorney or OWI lawyer will be needed to navigate these treacherous laws if you plan to drive a motor vehicle.
Georgia’s implied consent law is an essential part of every DUI arrest in Georgia. Yet, police have never taken the time to explain the implied consent definition. It is an obscure law that has been in use in some states for over 70 years, and about 60 years in Georgia. An implied consent law means police inform you of your legal “obligation” (“Georgia law requires you to submit…”) to take INCRIMINATING tests of your blood, breath, or urine. The arresting officer wants to collect evidence to suspend your right to drive. Urine, blood, or breath results can convict you in a criminal case. Police conveniently leave this out of the implied consent notice.
Implied consent laws began to be enacted in the early 1950s, for the purpose of immediately taking away a dangerous driver’s driving license. DUI-DWI drivers were deemed to be such a risk to the public that states could administratively take away or restrict an arrested person’s driving privileges, even before a criminal case was concluded.
In many states (e.g., California, North Carolina, and West Virginia), even if the criminal case gets totally dismissed, these administrative driver’s license sanctions remain in place.
In almost all states, two ways exist to “sanction” the arrested driver:
All states have zero tolerance for alcohol being consumed by drivers under age 21. However, the numeric BAC level varies (from state to state) from 0.00, 0.01 or 0.02, due to the lack of specificity and the inability of breath alcohol testing to reveal the true alcohol level.
Georgia’s implied consent law notice is part of a state statute, OCGA 40-5-67.1. All states in the USA have some sort of similar law that controls driver’s licenses, in situations where a suspected drunk driver is arrested for DUI-DWI and is then informed of his or her legal duty to submit to the officer’s requested breath alcohol test, blood test or urine test (or, in GA, possibly all three). This “warning” is the GA implied consent law notice.
Plus, all drivers of a CMV (commercial motor vehicle) are held to a 0.04 grams percent BAC, in every state.
Police have to read the GA implied consent law as soon as possible after the arrestee is in custody. In other states like North Carolina wait until you are in jail, so you can read, and not just hear the implied consent law.
In a nutshell, Georgia implied consent law states you are being asked to submit to testing of your breath, blood, or urine. If you REFUSE implied consent testing, you risk losing all driving privileges and getting a Georgia driver’s license suspension.
Law enforcement officers are authorized and trained in the Police Academy to read this implied consent “warning” to the arrested drunken driver. Significantly, the notice notifies the arrested motorist that a refusal to participate in the post-arrest testing in GA will suspend his or her driver’s license for a full year. This harsh loss of driving privileges, under Georgia’s implied consent law, is among the toughest and most inflexible implied consent laws in America.
Yes, you can. Many people facing a first DUI offense want to say “NO” because police give the implied consent law advisement after your arrest for DUI “less safe.” This fear comes from a mixture of unknowns. People fear being cuffed and going to jail, and they are afraid of needles. Also, people think they will not be placed under arrest for cooperating with police by taking these BAC tests.
Some people arrested for DUI ask to talk to a Georgia DUI attorney immediately, but the arresting officer tells them “no.” While police make DUI-DWI arrests in other states (e.g., NC) the officer will tell the driver when and where they can contact a drunk driving attorney. The Georgia Supreme Court ruled the arrestee can have NO CONTACT with legal counsel before submitting to or refusing the implied consent warning. The court can use this DUI refusal to suspend your driver’s license and is harmful evidence in a DUI case.
The Georgia implied consent notice is part of statute OCGA 40-5-67.1. Police must read this “warning” to the arrested drunk driver immediately following the arrest. The notice states a refusal to submit will suspend your driver’s license for a full year. The harsh loss of driving privileges makes the GA implied consent law among the toughest in America. Effective July 1, 2017, an alternative softened the GA DUI law, but the consequences are still severe for refusing to submit to the state test. A new Georgia implied consent driver’s license law went into effect on July 1, 2017. The new law allows people to install an ignition interlock device (IID) alternative and drive with an interlock device permit.
Before this new law, a driver faced a total loss of driving privileges. The risk of accepting the interlock alternative is severe, but it is one worth taking. Driving (especially with an Atlanta DUI) is essential to a working person.
Simply stated, when implied consent was conceived 65 years ago, a “legal fiction” was utilized: By driving on our state’s highways, you are deemed to have “consented” to submit to tests of your bodily fluids or breathe, in the event you are arrested for drunk driving or drugged driving.
Each state has (over the past six decades) modified and made more punitive the driver’s license impact, and (in over a dozen states) by adding jail time and or financial penalties, for non-compliance.
Over the many years since its initial enactment, most states have added this type of “notice” to driver’s license application forms, so that the “implied” notice is now an “actual” notice. The laws need to be enacted because a post-arrest detainee is being told that he or she must give MORE incriminatory evidence, with which the state can improve its chances of convicting the arrested driver.
A 2016 decision of the United States Supreme Court has now held that, for Fourth Amendment purposes, a breath alcohol test is not so invasive as to provide federal constitutional protection. Birchfield v. North Dakota, ___ U.S. ___, 136 S. Ct. 2160 (2016).
The short answer is NO. Judges have no legal authority to circumvent the Georgia implied consent law, which is controlled by State DUI laws. Your criminal lawyer has to beat a DUI or negotiate a means of keeping you driving, through the administrative license suspension law in Georgia.
The term “hardship license” is part of Georgia law, but is not applicable in this implied consent scenario. In other states, like South Carolina, a DUI lawyer can assist you in getting a “route restricted” driving permit, even with a DUI refusal to be tested, after an initial short period of license suspension.
Georgia law requires a full one-year “hard suspension.” For example, Florida also allows a person who refused the implied consent test in that state to obtain a limited driving permit (or hardship license) after 90 days of no driving.
No hardship license or DUI driving permit is available to a person arrested for a GA DUI who refuses to take the implied consent test if the driver loses the administrative driver’s license suspension hearing. This issue, of “if suspended administratively” is where the critical importance of hiring a DUI attorney with VAST experience in dealing with these administrative license suspension hearings becomes important.
If your criminal defense attorney is not up to the task of explaining the multiple different ways of navigating around this harsh driver’s license suspension punishment, no Judge in Georgia can save or restore your driving privileges.
It is well-established (by Georgia appellate case law) that no Georgia judge can (through injunctive relief) grant a “work license” or a DUI work permit after an administrative judge affirms the officer’s license suspension for “refusal.” Hardison v. Sellers, 171 Ga.App. 327 (1984); Ga. DUI Practice Manual § 4:53, Georgia DUI Trial Practice Manual, by William C. Head & Frank Gomez. So, no restricted license of any type can be obtained, regardless of the person’s need or hardship.
A new GA DUI law that was passed by the 2015 Georgia General Assembly takes effect on July 1, 2017, and after. This new statute (OCGA 40-5-64.1) notifies a driver facing a 1-year, inflexible, total loss of driving privileges, that he or she can opt for an ignition interlock-restricted license, with a one-year ignition interlock device being installed — at the DUI arrestee’s sole expense.
Other paperwork must be filed with DDS GA by your DUI lawyer within 30 days of arrest, including the driver’s affidavit seeking to withdraw the DUI refusal in Georgia in exchange for being allowed to install the interlock for 1 year. Only a Georgia licensee can utilize this new statute.
Then, subject to many other rules and restrictions, the person who makes this “election” can drive on that interlock restricted permit. This cost can be up to $4,000 over the full year.
JULY 1, 2017, AND AFTER, THE NEW LAW TAKES EFFECT
Don’t Delay: The Clock is Ticking!
So, until July 1, 2017, and arrests made in Georgia that date and after, any driver legally arrested for driving under the influence is given a Hobson’s choice of either submitting to testing, and possibly giving the Government more evidence of DUI GA, or refusing to be tested, which DUI refusal triggers this lengthy GA driver license suspension.
Skilled criminal defense attorneys across America challenged the right of police to REQUIRE such incriminatory testing, for a post-arrest individual who had no access to an attorney. The Miranda warning did not exist in America until 1966, so (in earlier years) police in America operated a lot like the Mafia since they had guns, billy clubs, and handcuffs.
Forcible blood collection was not unusual in some states when a person did not want to willingly blow into a breathalyzer. Two U S Supreme Court implied consent cases in the last few years have changed that practice forever, where it existed.
Some people foolishly try to self-assess their chances of winning a DUI in GA. The operable word here is “FOOLISHLY.” Just reading TRUE DUI case histories with:
After being arrested for DUI in GA, some people are so depressed that they dwell on their mistake the night before, and not on beating the criminal charges. Fear of the unknown can be a powerful enemy. Our DUI lawyer partners WELCOME comparing criminal attorney comparisons. For example, our law firm has three different law book authors, which is unique in Georgia and possibly in all of America.
A successful defense record for all Atlanta DUI attorneys in the law firm must include possessing the ability to neutralize field sobriety test evidence and finding ways to eliminate breath alcohol test results, especially where the “number” is in excess of the legal alcohol limit. Plus, knowing the LAW is critical, and this entails our DUI attorneys being familiar with every prior appellate decision on Georgia DUI laws and especially Georgia’s implied consent law.
Drugged driving cases have grown by 100% in the last 15 years. Sleep driving DUI cases, after taking prescribed medications for insomnia or pain management are up by 400%. Plus, a conviction for DUI-drugs has more devastating DUI penalties in Georgia that a DUI-alcohol case, due to more severe loss of driving privileges and other loss of entitlements (e.g., loss of the GA Hope Scholarship due to a “drugs” conviction).
Each DUI attorney in our law office possesses special training on debunking “drug recognition” officers’ training and roadside tests like the “modified Romberg test” and the less-extensive ARIDE protocols require that our criminal defense lawyers know how to challenge a GBI blood alcohol or drugs test. Each of our Atlanta lawyers is an INSTRUCTOR in the three NHTSA standardized field sobriety tests (SFST), which exceeds the training of most police officers making arrests for DUI in Georgia.
The best DUI lawyers in Atlanta, Georgia will offer you a FREE attorney consultation, explain how their criminal defense attorneys review your DUI case facts and implement a game plan for winning. Our three Georgia Super Lawyers aggressively represent clients accused of committing crimes through filing and arguing suppression motions. Limit your search to a lawyer for DUI who has achieved legitimate legal industry excellence attorney ratings, and who possesses a track record of proven drunk driving defense results on knowing how to beat a DUI. If our law firm has the RIGHT criminal defense attorney for you, ask our law office about our DUI attorney payment plans.
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Remember, you only have 30 DAYS to file a license suspension appeal or apply for an ignition interlock device, or your driver’s license will be suspended for up to one year! Talk to Bubba Head, Larry Kohn, or Cory Yager now. We are available 24 hours a day, weekends, and all major holidays. (404) 567-5515
