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Georgia Implied Consent Law Interlock Option

Implied Consent Law in Georgia: What Does “Implied Consent” Mean?

By: William C. Head, DUI Attorney Atlanta, and Drunk Driving Book Author

The Georgia implied consent law notice is part of a statute, OCGA 40-5-67.1. About a dozen more Georgia statutes reference (in some way) the implied consent law in Georgia. These other statutes are dealing with the repercussions of a driver who has refused to submit to testing or has been involved in a motor vehicle

In Georgia, law enforcement officers are trained to immediately read this “warning” to all lawfully-arrested drunk drivers, to apprise the detained person of his or her legal obligation to submit to post-arrest breath testing, blood tests or urine tests.

For any of these tests, consent is “implied” for any driver who shows signs of impairment or use of impairing substances. If a driver arrested for DUI in Georgia submits to testing, this consent must be actual, voluntary and knowingly given. Williams v. State, 296 Ga. 817 (2015).

New Georgia Appeals Have Changed Implied Consent in Georgia

In the Williams case, a conviction in Gwinnett County, GA for driving under the influence of drugs (“DUI”) was obtained at a non-jury trial. Williams had been stopped for lane violation. The DUI lawyer for Mr. Williams unsuccessfully sought to suppress the results of a blood test that was collected pursuant to the Georgia implied consent law. No search warrant was obtained, and Williams’s DUI attorney argued that this violated his client’s rights under the McNeely case.

McNeely implicated the Fourth Amendment to the United States Constitution, but the drunk driving lawyer for Williams also raised State Constitutional grounds, under and Article 1, Section 1, Paragraph XIII of the Georgia Constitution. Specifically, the criminal defense attorney for Williams argued the Georgia implied consent law set forth in OCGA 40-5-55, was unconstitutional as applied in his Georgia DUI case because his consent had been obtained solely under the implied consent statute.

The argument was that this did not amount to a voluntary consent, so as to satisfy the 4th Amendment to the United States Constitution, and the companion State Constitution protections.

The Arresting Officer Gets to Select WHICH Implied Consent Test in GA

As far as which tests implied consent authorizes, Georgia law gives the officer the OPTION to request one test or “tests,” (meaning any or all types of tests). However, two recent United States Supreme Court cases (McNeely and Birchfield) have curtailed blood testing under the GA implied consent law statute, by limiting the invasive tests to drivers that show no indication of being DUI less safe by alcohol. A breath test only measures alcohol, not drugs. Under the consent law, an officer can mandate a blood test, but not for a garden-variety DUI-alcohol case.

The legal admonishment notifies you that your refusal to participate in the post-arrest testing will suspend your driver’s license for a full year, for those with a Georgia drivers license, or your privilege to operate a vehicle on the highways of this state, for a full 12 months.

This harsh loss of driving privileges, under the GA implied consent law, is among the toughest and in America, for DUI penalties and loss of driving privileges. The next section discusses a relatively new statute that ameliorates some of the crippling loss of all driving privileges that many have suffered, for the last couple of decades.

New Implied Consent License Suspension Rules Effective July 1, 2017

Effective July 1, 2017, a new implied consent ignition interlock device (IID) alternative has softened the GA DUI law, but the consequences of refusal to test are severe. The new provisions enacted under OCGA 40-5-64.1 pertain to a highly-important the ignition interlock device limited permit (IIDLP) that can greatly benefit most Georgia driver license holders, if they have a DUI refusal.

This new Georgia implied consent driver’s license law that was passed by the Georgia General Assembly went into effect July 1, 2017, wherein a driver facing an immediate administrative license suspension (ALS) hearing, and the inflexible, total loss of driving privileges, now can opt for a one-year ignition interlock device being installed (at the expense of the driver), and then drive his or her restricted vehicle on that ignition interlock device limited permit (IIDLP).

A 30-day deadline exists, for filing for the Interlock device, OR appealing the Georgia DDS suspension. DO NOT MAKE THIS CHOICE without a knowledgeable DUI lawyer advising you!

The risks and pitfalls of accepting this alternative are severe, if any violation of traffic laws or compliance with 100% alcohol-free use of the interlock occur, but trying to find a way to drive (especially with an Atlanta DUI) is essential to most working people.

The Three Different Notices Under Georgia Implied Consent Law

OCGA § 40567.1. Tests to determine presence of alcohol or other drugs; implied consent notice; suspension of license; refusal to submit to testing; hearing; judicial review; attendance of law enforcement officers at implied consent hearings; certification of breath-testing instruments

(a) The test or tests required under Code Section 40-5-55 shall be administered as soon as possible at the request of a law enforcement officer having reasonable grounds to believe that the person has been driving or was in actual physical control of a moving motor vehicle upon the highways or elsewhere throughout this state in violation of Code Section 40-6-391 and the officer has arrested such person for a violation of Code Section 40-6-391, any federal law in conformity with Code Section 40-6-391, or any local ordinance which adopts Code Section 40-6-391 by reference or the person has been involved in a traffic accident resulting in serious injuries or fatalities. Subject to Code Section 40-6-392, the requesting law enforcement officer shall designate which test or tests shall be administered initially and may subsequently require a test or tests of any substances not initially tested.

(b) At the time a chemical test or tests are requested, the arresting officer shall select and read to the person the appropriate implied consent notice from the following:

(1) Implied consent notice for suspects under age 21:

“Georgia law requires you to submit to state administered chemical tests of your blood, breath, urine, or other bodily substances for the purpose of determining if you are under the influence of alcohol or drugs. If you refuse this testing, your Georgia driver’s license or privilege to drive on the highways of this state will be suspended for a minimum period of one year. Your refusal to submit to the required testing may be offered into evidence against you at trial. If you submit to testing and the results indicate an alcohol concentration of 0.02 grams or more, your Georgia driver’s license or privilege to drive on the highways of this state may be suspended for a minimum period of one year.

After first submitting to the required state tests, you are entitled to additional chemical tests of your blood, breath, urine, or other bodily substances at your own expense and from qualified personnel of your own choosing. Will you submit to the state administered chemical tests of your (designate which tests) under the implied consent law?”

(2) Implied consent notice for suspects age 21 or over:

“Georgia law requires you to submit to state administered chemical tests of your blood, breath, urine, or other bodily substances for the purpose of determining if you are under the influence of alcohol or drugs. If you refuse this testing, your Georgia driver’s license or privilege to drive on the highways of this state will be suspended for a minimum period of one year. Your refusal to submit to the required testing may be offered into evidence against you at trial. If you submit to testing and the results indicate an alcohol concentration of 0.08 grams or more, your Georgia driver’s license or privilege to drive on the highways of this state may be suspended for a minimum period of one year.

After first submitting to the required state tests, you are entitled to additional chemical tests of your blood, breath, urine, or other bodily substances at your own expense and from qualified personnel of your own choosing. Will you submit to the state administered chemical tests of your (designate which tests) under the implied consent law?”

(3) Implied consent notice for commercial motor vehicle driver suspects:

“Georgia law requires you to submit to state administered chemical tests of your blood, breath, urine, or other bodily substances for the purpose of determining if you are under the influence of alcohol or drugs. If you refuse this testing, you will be disqualified from operating a commercial motor vehicle for a minimum period of one year. Your refusal to submit to the required testing may be offered into evidence against you at trial. If you submit to testing and the results indicate the presence of any alcohol, you will be issued an out-of-service order and will be prohibited from operating a motor vehicle for 24 hours.

If the results indicate an alcohol concentration of 0.04 grams or more, you will be disqualified from operating a commercial motor vehicle for a minimum period of one year. After first submitting to the required state tests, you are entitled to additional chemical tests of your blood, breath, urine, or other bodily substances at your own expense and from qualified personnel of your own choosing. Will you submit to the state administered chemical tests of your (designate which tests) under the implied consent law?”

If any such notice is used by a law enforcement officer to advise a person of his or her rights regarding the administration of chemical testing, such person shall be deemed to have been properly advised of his or her rights under this Code section and under Code Section 40-6-392 and the results of any chemical test, or the refusal to submit to a test, shall be admitted into evidence against such person. Such notice shall be read in its entirety but need not be read exactly so long as the substance of the notice remains unchanged.

(c) If a person under arrest or a person who was involved in any traffic accident resulting in serious injuries or fatalities submits to a chemical test upon the request of a law enforcement officer and the test results indicate that a suspension or disqualification is required under this Code section, the results shall be reported to the department.

Upon the receipt of a report of the law enforcement officer that the officer had reasonable grounds to believe the arrested person had been driving or was in actual physical control of a moving motor vehicle upon the highways or elsewhere throughout this state in violation of Code Section 40-6-391 or that such person had been driving or was in actual physical control of a moving motor vehicle upon the highways or elsewhere throughout this state and was involved in a traffic accident involving serious injuries or fatalities and that the person submitted to a chemical test at the request of the law enforcement officer and the test results indicate either an alcohol concentration of 0.08 grams or more or, for a person under the age of 21, an alcohol concentration of 0.02 grams or more, the department shall suspend the person’s driver’s license, permit, or nonresident operating privilege pursuant to Code Section 40-5-67.2, subject to review as provided for in this chapter.

Upon the receipt of a report of the law enforcement officer that the arrested person had been operating or was in actual physical control of a moving commercial motor vehicle and the test results indicate an alcohol concentration of 0.04 grams or more, the department shall disqualify the person from operating a motor vehicle for a minimum period of one year.

(d) If a person under arrest or a person who was involved in any traffic accident resulting in serious injuries or fatalities refuses, upon the request of a law enforcement officer, to submit to a chemical test designated by the law enforcement officer as provided in subsection (a) of this Code section, no test shall be given; but the law enforcement officer shall report the refusal to the department.

Upon the receipt of a report of the law enforcement officer that the officer had reasonable grounds to believe the arrested person had been driving or was in actual physical control of a moving motor vehicle upon the highways or elsewhere throughout this state in violation of Code Section 40-6-391 or that such person had been driving or was in actual physical control of a moving motor vehicle upon the highways or elsewhere throughout this state and was involved in a traffic accident which resulted in serious injuries or fatalities and that the person had refused to submit to the test upon the request of the law enforcement officer, the department shall suspend the person’s driver’s license, permit, or nonresident operating privilege for a period of one year or if the person was operating or in actual physical control of a commercial motor vehicle, the department shall disqualify the person from operating a commercial motor vehicle and shall suspend the person’s driver’s license, permit, or nonresident operating privilege, subject to review as provided for in this chapter.

(d.1) Nothing in this Code section shall be deemed to preclude the acquisition or admission of evidence of a violation of Code Section 40-6-391 if obtained by voluntary consent or a search warrant as authorized by the Constitution or laws of this state or the United States.

Ga. Code Ann., § 40-5-67.1

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