By: William C. Head, DUI Lawyer Atlanta and Board Certified DUI Specialist
The Georgia implied consent law is an essential part of virtually every DUI arrest in Georgia. The Georgia implied consent law states that (under Georgia DUI laws relating to administrative driver’s license suspension) you are being asked (at the risk of losing all driving privileges for 1 year) to submit to forensic testing of your breath, blood, or urine.
A DUI refusal creates Georgia license suspension issues for anyone with a Georgia driver’s license, and can ban an out-of-state driver from driving in GA for a full year.
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 relating to GA license suspension 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.
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.
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.
If a blood test or a urine test (instead of a breath alcohol test) is part of the State’s evidence, and will be introduced at trial against you, William C. Head, Larry Kohn and Cory Yager have decades of training and experience to fight the blood alcohol test or DUI drugs results.
u 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. DIAL 404-567-5515, and we will respond 24-7. FREE initial consultation.