What Does Implied Consent Mean?
In Georgia, implied consent laws mean that all drivers automatically give consent to a chemical test when they apply for and are issued a driver’s license. O.C.G.A. § 40-5-67 provides: A person operating a motor vehicle on the highways of this state shall be deemed to have given consent to a blood test, breath test, or urine test for the purpose of determining whether such person is under the influence of alcohol or drugs. Such person may express consent to a field sobriety test as provided in Code Section 40-5-67.1. If any person under arrest refuses to submit to such a test as provided in this part, none shall be given, but such refusal may be offered in evidence against such person in any civil or criminal action or proceeding. Except as provided in subsection (b) of Code Section 40-5-67.1, no chemical analysis of the blood, breath, urine, saliva, or other body substance of any person shall be administered without the consent of the person tested .
The concept of ‘implied consent’ sounds a little strange at first sight. To understand what it means, you need to realize that in addition to having some ‘qualified’ rights, like the right to vote and own property, individuals also have certain ‘unqualified’ rights. The right not to be searched or have your property seized, for example. When you fill out your driver’s license application in Georgia, you agree to surrender that qualified right for forty-eight months. That means that if you get pulled over by law enforcement for impaired driving, you need to submit to a chemical test. In Georgia, it is your right to refuse entry without a warrant but when you applied for your driver’s license, you agreed to surrender that right for a limited duration. It is called ‘implied consent’ because you have agreed to it in principle when you applied for the license.
How the Implied Consent Law Operates
In the State of Georgia, if you drive on the street then you have voluntarily consented to take a chemical test to determine your blood alcohol concentration. Georgia Code § 40-6-392(a)(1) states in part that: Any person who operates any vehicle on any highway within this state shall be deemed to have given consent… to chemical analysis for determining the amount of alcohol in his or her blood, breath, or urine. In other words, if, in the opinion of law enforcement, you are impaired as a result of drinking alcohol, and they suspect you of driving under the influence, that officer will likely ask you to submit to a chemical test to reveal your BAC. This law is referred to as Georgia’s implied consent law. As an aside, even if you refuse to submit to a BAC test, the officer has other tools at their disposal to determine if you were under the influence when you were driving your car. If you submit to the test and you are found to have a BAC of .08% or more, your license will be suspended for a year. A second suspension for refusing testing could result in license loss for three years. However, if you had less than a .08% BAC and you were wrongfully arrested, and the police officer didn’t present evidence to prove your BAC was .08% or more, your arrest can be challenged in court. If you are arrested for DUI and refuse to take a chemical test, your driver’s license will automatically be suspended for one year. Also by statute, if your blood is tested and the results indicate that you have a BAC of 0.08% or more, the science changes. In other words, if you have the legal limit within your body, it is presumed that you drove under the influence. This means if you have a BAC of 0.08% or higher, the court *will* convict you of DUI.
Refusing a Chemical Test: What Happens?
If you refuse a chemical test under Georgia’s implied Consent law, there are two possible consequences: immediate administrative license suspension by the Department of Driver Services and possible legal proceeding where you could be found guilty of a DUI refusal (nothing is worse than having a conviction for DUI refusal on your record). For immediate license suspension, the Officer must physically take your driving license, not give you a citation with a promise to appear in court. The Officers who fail to take your license have been taught incorrectly and their teaching materials themselves are incorrect. The Officer is also required to serve you with a 45 day temporary driving permit, which allows you to continue driving for 45 days. This is an absolute requirement of the law. The officer will send the form to the Department of Driver Services and they will mail out a 30 day temporary driving permit for you to use once the officer turns in the required paperwork. (After this 30 day permit expires, you will need to apply for a full reinstatement or have your lawyer apply for a conditional license allowing you to drive to work if you qualify – this does not automatically happen). If the Department has not received the paperwork from the arresting agency within 45 days of the arrest, your license cannot be suspended for the refusal. You do not need a lawyer to review the papers for you there is no record where a lawyer will be of assistance in correcting a mistake or oversight made by the arresting agency or the Department of Driver Services. In addition to the Administrative license suspension, the action taken by the arresting agency can result in a legal proceeding in traffic court where you could be charged with DUI refusal even though you did not operate a vehicle under the influence of alcohol or drugs in violation of the DUI law (O.C.G.A. 40-6-391). The DUI refusal law reads as follows: ‘(a) A person shall be deemed to have given consent to a chemical analysis of persons in accordance with Code Section 40-5-67, which provisions are expressly adopted. (b) A person’s refusal to give consent to a chemical analysis after having been warned as required in Code Section 40-5-67 shall be considered as a refusal; provided, however, that the refusal does not create any presumption adverse to the trial of a violation of subsection (a) of Code Section 40-6-391. Nothing in this subsection shall affect or impair the use of a refusal to submit to a chemical analysis as evidence in a pending civil action involving an insurance company. A refusal to submit to a chemical analysis may be enforced only in accordance with the provisions of Code Section 40-5-67.’ O.C.G.A. 40-6-392 What this means is that you can be found guilty of refusing to submit to a chemical test simply because a police officer says you failed to blow into a breath machine they had in their patrol car, or that you failed to submit a blood test at the hospital. You can be prosecuted in Municipal and Traffic Court for this charge even though the officer did not follow the implied Consent law correctly, or even though he had no right to administer a breath or blood test solely for the alleged reason you were given a ticket for DUI. I have handled numerous cases where clients have been charged with DUI refusal and successfully gotten the charges dropped. Many times this happens before the first court appearance date for the initial traffic ticket (it is never removed on the initial appearance date). The first appearance date for the alleged traffic offense will always be prior to any court proceedings on the DUI refusal charge. Many of you may have gone to Court and not even realized that you had pled guilty to the DUI refusal and that the conviction has been on your driving record ever since. I recently found out a client who had received a citation for a failure to yield and was fined $300.00 was convinced by his lawyer to plead guilty to a DUI refusal so he would not have to appear in court for the upcoming trial on the failure to yield charge. When asked about the DUI refusal conviction during the license reinstatement process, neither the client nor his lawyer could even locate a copy of the document he had signed in court to plead guilty to the DUI refusal – this should have been a red flag for both the client and his lawyer. This is the type of practice I am attempting to eliminate and make sure each person charged with a crime is treated fairly and is properly represented in court by an attorney who is knowledgeable about the law. A knowledgeable traffic attorney can challenge the reinstatement of a suspended license and free those who are wrongly accused of violating the law of DUI refusal.
Fighting Implied Consent Violations
If you are stopped by law enforcement and then subject to an arrest for a DUI, the officer will request that you submit to one or more State sponsored tests. You will also be warned of the repercussions for failing to submit, for not completing the requested tests, for submitting to the test our of your fear and apprehension of punishment, and what happens if the tests do not comply with the implied consent statute. While not mandatory, these warnings are given even though the warning is redundant and repetitive. The results of these tests when provided, or the refusal to take the tests, can be used against you in court. Possibly the biggest problem we face in defending the Implied Consent violation is the critical time-lapse which occurs between the stop, the arrest, the implied consent warning, the failure to give the tests, and the arresting officer’s submission of the affidavit to DMV. By State law, the arresting officer, after obtaining an affidavit, must then sign it and submit it to the Department of Driver Services (DDS) on the form provided by that agency. The law also prescribes by what means it must be submitted . When we review the affidavits in a given case the officer has done a sloppy job, or did not follow the directive until the next step, or had some person other than themselves submit the affidavit. This opens the door to a challenge of the suspension of your driving privileges under the implied consent statute. With Georgia’s administrative license suspension statutes, programs, and other fees, the cost and financial impact can be very significant. We don’t guarantee success to our clients when their cases go to traffic court or to trial, however we have had a good degree of success implementing a defense to the implied consent violation based upon procedural and evidentiary challenges. Our efforts rely heavily on the following violations and issues related to the procedures and practices employed by the officers and the specifics of the warning and the warnings given by the officers to our clients as they relate to the statutory language. There is only a limited time for these violations and issues to be raised by your attorney, and given to the State at the traffic court. Once the hearing has taken place, the opportunity to raise these issues and violations is gone forever.
Recent Updates and Changes to the Law
Recent legislative updates have sought to strengthen the Implied Consent law in Georgia. House Bill 118 (the "HB 118") took effect July 1, 2019 and substantially amended O.C.G.A. § 40-5-67.1.
First, HB 118 provides that tests other than blood are not required to be done under the supervision of a law enforcement officer. Currently, officers will typically not make a driver take a urine test unless they have been examined by a trained drug recognition expert. Under the new amendments, an officer is no longer required to supervise the collection of that sample.
Secondly, HB 118 provides that if an officer does not give a breath test at the station, or show the driver a copy of the breath test ticket, blood or urine tests "shall not be considered an alternative to the breath test." Previously, this issue was largely left to judicial discretion, so it is clearly the intent of the legislature that this rule apply universally.
Finally, HB 118 has removed the "properly calibrated" language from O.C.G.A. § 40.5.67.1(b)(3)(B). Subsection (b)(3)(B) has now been broken into two separate subsections. The newly proposed subsection (b)(3)(A) still provides that the test results will be admitted if the test instrument was properly calibrated and maintained and subsection (b)(3)(B) is now a catchall for other circumstances. The language goes as follows: "And the facilities of the testing officer, his or her method of administration, or the conditions under which the test was administered were otherwise proper."
This last change did not seem to have a specific trigger and resulted in lengthy discussions at the legislative level regarding admissibility. As a result, the language is ambiguous as to whether this amendment will affect the admissibility of samples collected by a laboratory or facility other than the one maintained by the police agency itself.
Nonetheless, HB 118 is an amended version of a previous bill, which originally made sweeping changes to DUI law, including the language permitting evidence to be introduced if the test facility or method of administration was "otherwise proper," taking away the option to defendants of obtaining a forensic expert to review the tests and having their retained expert testify against admissibility. While the amended version stripped many of the harsh provisions of the original bill, the removal of this "catchall" leaves open the possibility that law enforcement officers can now choose to exclude boyfriend/girlfriend forensic scientists from the list of available proper experts.
Tips for Georgia Drivers
By familiarizing yourself with Georgia’s Implied Consent Law, you will be better prepared should you be stopped by law enforcement.
- If you are asked to take a blood, breath or urine test, you must agree to submit to the test. Refusing can lead to disciplinary actions from the Georgia Department of Driver Services.
- If you are asked to submit to a blood or urine test, you cannot refuse.
- A law enforcement officer must read to you an Implied Consent Notice prior to a chemical test being performed.
- The officer must read you written notice advising you of the consequences for failing or refusing to submit to chemical testing.
- Providing consent to the testing requires that the law enforcement officer first informing you about the charges you face .
- There is no specific time limit for an officer to obtain your consent to a chemical test, however, the laws related to DUI provide a window for testing of no more than two hours from the time of the arrest.
- If you are charged with DUI drugs, you cannot request a blood, breath or urine test (someone else cannot ask for the tests on your behalf).
- As soon as DUI charges are made against you, you should consult with a DUI attorney on how to best proceed.
Your choice to agree to a chemical test after being arrested for drunk driving could significantly impact your case. Under these circumstances, you are at a distinct advantage if you have a knowledgeable attorney helping you understand the consequences of your choices.