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Implied Consent: What is the Georgia Implied Consent Law?

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

What does implied consent mean? Following their arrests for allegedly driving under the influence of alcohol or drugs, the police officer reads an advisement at the roadway. The admonishment is stating that if you decline to give police permission to obtain tests of your blood, breath, or urine, that your right to drive in Georgia can be taken away without you ever going to a court of law.

What is the implied consent law for drivers arrested of DUI in GA? Like all other states, being arrested for a DUI charge from a bright green Georgia implied consent card signifies that the officer is notifying you that your driver's license is being suspended, administratively. This link gives a decent overview of an implied consent law definition.

Implied Consent Law

"I thought I was read my Miranda rights." Some people arrested for drunk driving or DUI drugs think that they were being read a Miranda warning (about the right to remain silent), from the 1966 US Supreme Court case, Miranda v. Arizona. That happens in almost zero cases in the State of Georgia.

Why is a refusal to submit to implied consent testing so bad? The criminal case associated with this arrest will come later, but this immediate legal action against your right to drive must be properly handled very soon after arrest.

This is especially true if you are being accused of "DUI refusal Georgia," for declining to take the post-arrest test of breath, blood, or urine. A refusal to submit will start a legal process to suspend you for one full year, with no driving privileges.

Implied Consent Breath Alcohol Test

WARNING: Many clients arrested for a DUI offense in the Peach State do not realize that a DUI arrest starts TWO different legal proceedings. This first pressing legal issue has to do with an administrative law court: OSAH, or the Office of State Administrative Hearings.

Once contacted by potential DUI clients, our DUI lawyers near me will read through all their arrest paperwork and find their administrative license suspension form. This Georgia DDS form contains statutory language about the Georgia implied consent law "warning" but does not fully explain what to do.

The law's impact can be for a driver who refused post-arrest testing to lose all ability to drive in GA for 12 months or more. For many first offense DUI clients, this threat to their driving privileges seems to be the most painful DUI penalty.

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.

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.

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 for a minimum period of one year. 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. As can be seen this is nothing like a Miranda warning. The prior card was a dull orange color. Our DUI lawyers can sometimes tell which version of the 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 Georgia Implied Consent 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 Georgia

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

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

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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.

Driver's License

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.

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?

Over 85 Collective Years of Experience

Call today to our law office for a FREE lawyer consultation near me. Our lawyers for DUI near me usually can find errors that were made in your DUI arrest process. Contact us at this number, 24 hours a day and even on holidays and weekends: 404-567-5515.

Important additional Links to Elaborate on additional aspects of implied consent law in Georgia

The wording of OCGA 40-5-64.1
Should I file the implied consent appeal to DDS in GA, or get the Interlock?
The limitations of the ignition interlock device limited permit

The seldom used but highly important right to an independent test that almost no DUI arrestees assert

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