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GA Implied Consent Law – How to Beat a Breathalyzer, Blood or Urine Test

Implied Consent Law in GA – Misunderstood But Highly Important in a GA DUI Arrest

By: William C. Head, DUI Lawyer Atlanta

The Georgia implied consent law is an essential part of virtually every DUI arrest in Georgia. The implied consent law states that (under Georgia DUI laws relating to driver’s license suspension) you are being asked (at the risk of losing all driving privileges) to submit to forensic testing of your breathblood, or urine.

Because this implied consent advisement is given to you after your arrest for DUI “less safe,” and you are being asked to submit to INCRIMINATORY testing, to collect evidence that is to be used in a criminal court case, this DUI GA law is “strictly construed” against the State. What that means is that the State must follow all the rules for use of this Georgia DUI law, or LOSE their breath alcohol test, blood test for alcohol or drugs, or urine test for drugs.

In some situations, where the wording of the GA implied consent law advisement is proven to be defective, even a REFUSAL can be excluded from a GA DUI case. In 1994, Mr. Head won a landmark DUI case in Gwinnett County State Court for a South Carolina, underage driver. The legal principles from that appellate case (State v. Leviner, 213 Ga.App. 99) altered Georgia implied consent law for the next several years. Many DUI refusal cases were resolved favorably, once the refusal to be tested evidence was no longer part of the case.

Implied Consent: What Does That Legal Term Mean?

The Georgia implied consent notice in Ga is part of a statute, OCGA 40-5-67.1. Law enforcement officers are authorized to read this “warming” to the arrested drunk driver, and the notice notifies you that a refusal to participate in the post-arrest testing will suspend your driver’s license for a full year. This harsh loss of driving privileges, under the GA implied consent law, is among the toughest and most inflexible in America.

A new law that was passed by the 2015 Georgia General Assembly goes into effect July 1, 2017, wherein a driver facing this inflexible, total loss of driving privileges, can opt for a one-year ignition interlock device being installed, and then drive on that interlock restricted permit.

For now, however, any driver legally arrested from 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 triggers this lengthy GA driver license suspension, with no hope for a restricted license. While many other states have similar laws, but allows provisional license restrictions, after a refusal, Georgia laws do not.

Can I get a judge in GA to issue a hardship license or DUI work permit?

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 at 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 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.

The term “hardship license” is part of Georgia law, but not 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 refusal to be tested, after an initial short period of license suspension. Georgia law requires a full one year “hard suspension.” Florida also allows a person who refused implied consent to obtain a limited driving permit after 90 days of no driving.

The Arresting Officer Selects Type of DUI Implied Consent Test(s)

Under the GA implied consent law, it is the arresting officer’s the choice which chemical test or tests (in some cases) are conducted, following a DUI arrest. The results obtained will help determine the level of whatever impairing substance for which you are being accused of driving under the influence.

A suspected drunk driver (or stoned driver on drugs) arrested for DUI in Georgia will typically be asked to submit to testing of his or her breath, blood, urine — or possibly all three, under Georgia implied consent law. Two recent U.S. Supreme Court cases, McNeely (2013) and Birchfield (2016), restrict an officer who has arrested a drunk driver, where the officer ONLY has a reason to suspect alcohol as the impairing substance, from seeking a more invasive blood draw, by using Georgia implied consent law notice, but requesting BLOOD extraction.

So, to ask for a blood test, under GA implied consent, the officer needs evidence of drug use, or other “exigent” circumstances, to justify use of the GA implied consent statute for collecting a citizen’s blood test.

The greatest number of Georgia DUI arrests (about 85%) are for DUI-alcohol, but driving while intoxicated in GA can be by drugs, marijuana, prescription medicines or other intoxicating substances (e.g., huffing paint fumes, glue, or noxious vapors). When marijuana or other central nervous system drugs are suspected, some officers request implied consent tests of both blood and urine from the DUI arrestee.

As discussed above, this right of the officer to select the type of implied consent law test is now limited, when only alcohol is suspected as the impairing substance. However, to supply a breath alcohol test, on an Intoxilyzer 9000, the arrested individual will need to physically participate in such forensic testing by forcibly exhaling two deep lung air samples, or no sample can be produced.

These two samples will have a short “recovery” period from the first exhalation to the second exhalation.

What if I submit to the implied consent breath alcohol test, but can’t deliver a sufficient breath sample?

Litigation in the state of New Jersey challenging the breathalyzer “source code” proved that some elderly people, or persons with lung disease (i.e., COPD, lung cancer, emphysema) and smaller-stature women sometimes cannot deliver an adequate amount of deep lung air 1.1 liters or more) over the sustained time period, to “satisfy” the breath testing machine criteria for pressure, duration and volume of air.

In addition, scientific studies conducted by Dr. Michael Hlastala, a former University of Washington Medical School Professor, showed wide variations in different people’s lung function and volume.

Yet, some police officers are quick to sign an implied consent refusal affidavit, and not bother getting a warrant for a blood draw. A top DUI lawyer will know how to address this legal issue, but your DUI lawyer may need for you to he examined by a medical expert, and pay for such expert testimony and medical records, if you have a compromised vital capacity of your lungs.

What if the officer claims that my non-compliance with directions to blow into the Intoxilyzer 9000 prevented the breath test?

Any person who feigns (fakes) compliance with breath alcohol testing, or refuses to provide the two breath samples may soon find that the arresting officer has executed an electronic search warrant affidavit over the phone, and that a judge has signed a search warrant for blood to be collected, in light of the person’s DUI refusal. Since an Intoxilyzer 9000 measures and reports the exhaled breath volume, this “evidence” may be used to convince a judge that you faked compliance, in an effort to not comply with implied consent.

Then, the GA DUI arrestee will face a full twelve month hard suspension of his or her Georgia drivers license, plus possibly have to face the blood test results in the criminal trial. Out of state licensees will have no right to driver for the full 12 months, in Georgia, plus may face a similar suspension in their home state, if the DUI criminal case is also lost.

Implied Consent Law Georgia – Refusal Suspension – DUI Consequences

Refusing to take the requested State implied consent test can trigger a one year loss of all driving privileges. DUI license suspension (administrative license suspension for either refusing the State-administered test OR blowing “over the legal limit”) is one of many DUI consequences in GA. If a person refuses to be tested, the arresting officer may seek a search warrant to take a forcible blood test, but this does not happen in all jurisdictions, or with all officers.

Multiple reasons exist for this, including the officer knowing that he or she can usually obtain a DUI license suspension if he or she shows up at your administrative license suspension hearing. Very few legal challenges, at the administrative hearing, are available to “win” that hearing. Plus, current GA implied consent laws do not REQUIRE the officer to seek a search warrant.

Search Warrant for Blood – Forcible Blood Draw – Georgia DUI Law

In 2006, the Georgia legislature added a new statutory provision under our implied consent law that purports to authorize an officer who has arrested you for a garden-variety DUI-alcohol charge to seek to obtain a search warrant for your blood or urine (or both), if you refuse to submit to the officer’s requested implied consent testing under the provisions of Georgia implied consent law.

An alcohol breath test is the most common type of implied consent test being sought by Georgia police. Assuming the officer gives the consent notice in a timely and complete manner, the accused drunk driver may have his or her driver’s license suspended under the law’s provisions, and (if a search warrant is obtained) also can face the blood alcohol level taken by authority of a search warrant, if the case reaches trial.

Plus, to get a search warrant for your blood, which can be taken by force, the officer must swear out an affidavit in front of a magistrate judge to justify why blood should be allowed to be forcibly collected from you. You need the help of an experienced, knowledgeable and professional GA criminal defense lawyer who is a DUI specialist if you are facing a possible implied consent suspension in GA, due to a forcible blood collection, after a GA DUI.

What happens if I refuse to take a breath alcohol test?

The Georgia law of implied consent means that a detained citizen is being notified that a refusal to agree to take the requested breath alcohol test, or other type of tests (where justified by exigent circumstances), will cause an administrative license suspension for a full year – IF YOU LOSE THE ADMINISTRATIVE LICENSE SUSPENSION hearing. This is a “hard suspension” with no limited permit (work permit) allowed.

Additionally, the Georgia implied consent warning tells the arrested DUI suspect that evidence of his or her “refusal” to be tested can be used at any criminal trial in your case. One of our Atlanta DUI lawyer specialists can seek to exclude evidence of you allegedly seeking to refuse the implied consent test, and can fight against this being part of any trial.

Will I Lose My Driver’s License if I Refuse to Take a Breath Test or Blood Test?

So, implied consent law means that you either know your legal rights and follow them, or you face a suspended license for not taking an alcohol blood test (by the means requested by the arresting officer – breathalyzer, blood or urine). Call Mr. Head’s Atlanta DUI law firm today at 1-888-384-4323 to speak with an attorney that knows how to beat a DUI. Our Georgia DUI lawyers are skilled criminal defense attorneys, and especially knowledgeable about impaired driving defense.

William C. Head Has Special Training on Fighting Blood Testing and Urine Testing in DUI Arrest Cases

If a blood test or a urine test is part of the State’s evidence, and will be introduced at trial against you, William Head has decades of training and experience to fight the blood alcohol test or DUI drugs results. Beginning in 1998, Mr. Head organized a blood and urine training course for himself and other DUI lawyers to attend. This initial course was taught at Lake Tahoe, CA by Dr. Richard Jensen, Bob Zettl, and Ann Manley.

Following this multi-day forensic laboratory training course, Mr. Head traveled to Memphis, TN to the State of Tennessee’s crime laboratory. At this location, Mr. Head was the guest of Dr. David Stafford, who helped teach Mr. Head about crime laboratory instruments. These different devices are routinely used by crime laboratories to analyze blood, urine, and other biological specimens. Mr. Head videotaped the methods of analysis or marijuana, alcohol, prescription drugs, and edited the video to later use in training other DUI lawyers across America.

This unique Memphis training, in 2000, helped Mr. Head train other DUI attorneys understand how drugs and alcohol are analyzed and quantified by a crime lab, including his law partners, Atlanta DUI attorneys Larry Kohn and Cory Yager. All three drunk driving lawyers at the DUI law firm are recognized by Super Lawyers. Between the three partners, they have well over FIVE HUNDRED DUI lawyer reviews, that are 5-star attorney reviews.

If you have been recently charged ANYWHERE IN GEORGIA with a criminal offense, felony or misdemeanor, including drunken driving, contact our Atlanta DUI office today for a FREE consultation, and get quality legal representation by Mr. Head or one of his DUI law partners.

Why hire us? 24 hour lawyer – Call now for immediate DUI help!

Call NOW to speak with criminal defense attorney William Head or his law partners. We are all recognized as experts on GA DUI law. Forty-year veteran litigator William Head is widely recognized as the best DUI lawyer in Georgia. No DUI lawyer has won more Georgia implied consent appeals than William Head.

In addition to the Leviner case, discussed above, Mr. Head has won these other Georgia implied consent law appellate cases over the last 22 years:

Armentrout v. State

            Abelson v. State

            Kitchens v. State

            State v. Braunecker

            Joel v. State

            State v. Halstead

            State v. Barfield

            State v. Fielding

            State v. Renfroe

Call our DUI law firm anytime day or night at 404-567-5515 or 1-888-384-4323 (1-888-DUI-HEAD). The call is FREE. The professional legal consultation is FREE. If you have TOO MUCH TO LOSE, by getting a DUI conviction, why not hire the most experienced and best rated Atlanta DUI lawyers available?

 

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