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Implied Consent: What is the Georgia Implied Consent Law?

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By: Cory Yager and Larry Kohn, Georgia Criminal Defense Lawyers and Legal Book Authors on Criminal Law Practice

What does implied consent mean? Following their arrests for allegedly being under the influence of alcohol or drugs, many clients read through their arrest paperwork and find an administrative license suspension form. This form contains language about the Georgia implied consent law but goes no further to explain what the law says.

What does "implied" mean? In the early 1970s, a new federal agency (NHTSA) was tasked with coming up with new strategies for improving highway safety. Their first major project was to curb drunk driving, since over half of the drivers arrested for driving while impaired declined to take a state test, after already being arrested by police.

Implied Consent Law

So, they created a legal fiction of saying that all drivers, by virtue of their choice to use a state's highway system, (if that driver was first lawfully arrested for DUI-DWI) had implicitly CONSENTED to submit to state-administered tests. The sample could be taken from blood, breath or urine or other bodily substances, for the purpose of determining what impairing substances or chemicals were in the arrested driver's bloodstream.

Collectively, these are called Georgia "chemical tests" since some scientific process is used to identify the ethanol on the breath, blood, or urine, at the state crime laboratory.

Implied Consent Laws Were Dreamed up by a Federal Agency

NHTSACriminal defense lawyers filed dozens of different legal challenges to being subjected to this "legal fiction," so the National Highway Traffic Safety Administration (NHTSA), came up with model "implied consent law" statutory wording that all states were expected to enact. Georgia consent laws had language in the implied consent warnings for over 20 years which stated "requires you to submit" to whichever type of test or tests the officer selected, and that you had no right to a lawyer before deciding what to do or say.

The expressed consent definition. Many of these state laws added a "notification" of the existence of such laws to their drivers' license application and renewal forms, thereby giving "notice" of the law. For states who have added such check off boxes, some states call this "expressed consent," since the person signed the license application form at customer service centers acknowledging his or her obligation to take the testing.

The Far-Reaching Impact of an Implied Consent Refusal to be Tested

In 2021, some 50+ years later, implied consent means a driver must either say "YES" to a state-administered chemical test (after being detained and arrested for driving under the influence), or risk losing the right to drive for a full year, based upon Georgia's administrative license suspension laws. In about a dozen states, some drivers who refuse implied consent testing by not complying with the informed consent testing can also be punished by imprisonment.

For the full language of the GA implied consent statute, OCGA 40-5-55, click on this LINK. To read the statutory warnings applicable to underage DUI, CDL DUI and adult age drivers arrested for DUI, go to OCGA 40-5-67.1 to read what must be read to the detained driver by law enforcement officer immediately after the DUI arrest.

Implied Consent Breath Alcohol TestAny refusal will be posted on the Georgia MVR (motor vehicle records) as an implied consent driving violation. Then, if you are driving suspended, and are pulled over at another traffic stop or GA DL check, you could be arrested again for driving while suspended under implied consent.

If you lose this implied consent case, that can be a permanent notation on your Georgia driving record. In turn, this can have harsh future legal effects for CDL drivers under the FMCSA, or for those arrested for OUI-OWI-IVI-DUI in some states (e.g., Maine) that count that prior "refusal" as a prior DUI offense.

For the first time, many citizens learn that refusal to submit is a big deal, especially those who were operating a commercial motor vehicle. If convicted, that CMV driver faces a minimum period of one year being totally unable to operate a vehicle that is a commercial vehicle. If he or she has another prior conviction of DUI, that loss of ability to drive commercial vehicles is for his or her lifetime.

The "Implied Consent" Definition

In Georgia, police officers who arrest a motorist for DUI must immediately read the exact language of the statutory advisement. This advisement is to be verbally given immediately after arrest, and AT THE ROADWAY. Three versions of that legal notice are contained on a green colored, paper car that Georgia officers carry with them while on duty.

The reading of the Georgia implied consent law means that a law enforcement officer is claiming that you are DUI. While breath tests are the easiest forensic tests in a DUI-alcohol case, some officers in GA now demand a blood alcohol test. Blood or breath tests are statutorily controlled “forensic” tests regulated under provisions of OCGA 40-6-392, as these relate to DUI law in Georgia.

Since the early 1950s, some states had passed laws requiring that a suspected DUI driver MUST take the post-investigation chemical test of bodily substances (to determine what impairing substances are in your bloodstream) as requested by the arresting cop. By not taking the post-arrest testing being offered, this refusal carried civil license revocation or suspension consequences.

To refuse the post-arrest breathalyzer in Georgia (or a blood collection, if that is the implied consent test selected), such refusal of testing creates a potential loss of the right to drive in GA. Such refusal becomes a violation of implied consent law and puts your driving privileges in jeopardy of suspension.

The police are told to read the Georgia implied consent notice from the April 28, 2019 implied consent card verbatim. Minor errors in the reading will not invalidate the legality of this advisement, but substantive errors or omissions will. See Sauls v. State for the controlling opinion on that issue.

The new implied consent notice, carried by all law enforcement officers in Georgia, is bright green in color. The prior card was a dull orange color. Our DUI lawyers can sometimes tell which card is being read by seeing the color on a police video, but typically can hear the audio of what was read to the person in custody.

Implied Consent DUI Breathalyzer Test in Georgia: The New 2019 Card
Implied Consent Notice

The best DUI attorneys in the Peach State have made creative legal challenges to implied consent in GA. These legal attacks date back to 1970 and continue today. The latest major victory came from using the Georgia constitution as a basis to attack forensic breath tests.

The Georgia Supreme Court considered the legality of compulsion of breath alcohol testing that necessitated the already-arrested person to “act.” The use of the detained person’s body to undertake volitional acts in producing police evidence was the problem identified. By him or her engaging in following of instructions and blowing under State supervision, including when and how produced incriminatory evidence from a seized person.

Constitution GeorgiaFor decades, the Constitution in Georgia has been interpreted to offer more rights that the United States Constitution. On February 18, 2019, the Georgia Supreme Court issued its opinion in Elliott v. State , which declared parts of the old implied consent notice unconstitutional. This landmark ruling then caused the Georgia Legislature, which was in session at the time, to hurriedly enact a completely new 2019 GA implied consent law notice, as can be read on the implied consent card set forth below.

This new implied consent notice law was signed into law by the Governor on Sunday, April 28, 2019 .

How the Top Criminal Defense Attorneys Who Specialize in DUI Defense Win Georgia DUI Cases

A skilled criminal defense attorney with top lawyer ratings might review the car camera or body camera footage and raise probable cause to pullover the vehicle. Plus, an experienced DUI lawyer near me may be able to show that the client did consent, but (due to the officer’s actions or misinformation to the detained defendant) changed his or her mind. Your DUI lawyer Atlanta can have your pending license suspension successfully rescinded (removed) from the Georgia Department of Driver Services records.

But the only way to determine if this is an option in your DUI case is to speak with a criminal defense attorney with high attorney ratings who specializes in driving while intoxicated cases. The best-trained lawyers near me who deal with Georgia implied consent law issues daily offer you the best odds for beating a DUI in Georgia.

Our three law office partners, Larry Kohn, ex-cop Cory Yager and the author, ABA Board-Certified DUI lawyer William C. “Bubba” Head are ALL award-winning Atlanta DUI attorneys and legal book authors on DUI and criminal trial practice.

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If your DUI lawyer misses key legal issues or makes any errors, Georgia appellate court decisions have basically ruled that it is YOUR PROBLEM and will not overturn a conviction or UNDO the license suspension. What better reason to seek out the help of a veteran DUI attorney in Atlanta?

Call our office today for a FREE lawyer consultation near me, if you believe errors were made in your arrest process. (404) 567-5515.

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