By: Cory Yager and Larry Kohn, Georgia Criminal Defense Lawyers and Legal Book Authors on Criminal Law Practice
Following their arrests for allegedly being under the influence of alcohol or drugs, many clients search for the legal definition of implied consent in Georgia. As they try to understand and define implied consent, most will resort to a Google search.
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 if for his or her lifetime.
The implied consent law definition is contained in OCGA 40-5-55, and reads as follows:
O.C.G.A. 40-5-55. Implied consent to chemical tests
(a) The State of Georgia considers that any person who drives or is in actual physical control of any moving vehicle in violation of any provision of Code Section 40-6-391 constitutes a direct and immediate threat to the welfare and safety of the general public. Therefore, any person who operates a motor vehicle upon the highways or elsewhere throughout this state shall be deemed to have given consent, subject to Code Section 40-6-392, to a chemical test or tests of his or her blood, breath, urine, or other bodily substances for the purpose of determining the presence of alcohol or any other drug, if arrested for any offense arising out of acts alleged to have been committed in violation of Code Section 40-6-391 or if such person is involved in any traffic accident resulting in serious injuries or fatalities. The test or tests shall be administered 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. The test or tests shall be administered as soon as possible to any person who operates a motor vehicle upon the highways or elsewhere throughout this state who is involved in any traffic accident resulting in serious injuries or fatalities. Subject to Code Section 40-6-392, the requesting law enforcement officer shall designate which of the test or tests shall be administered, provided a blood test with drug screen may be administered to any person operating a motor vehicle involved in a traffic accident resulting in serious injuries or fatalities.
(b) Any person who is dead, unconscious, or otherwise in a condition rendering such person incapable of refusal shall be deemed not to have withdrawn the consent provided by subsection (a) of this Code section, and the test or tests may be administered, subject to Code Section 40-6-392.
(c) As used in this Code section, the term “traffic accident resulting in serious injuries or fatalities” means any motor vehicle accident in which a person was killed or in which one or more persons suffered a fractured bone, severe burns, disfigurement, dismemberment, partial or total loss of sight or hearing, or loss of consciousness.
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, the implied consent law states that the suspected DUI driver MUST take the post-investigation test (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 carries civil consequences.
To refuse breathalyzer Georgia (or blood collection) 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 won’t 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
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.
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 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.
How 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, 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? Call our office today for a FREE lawyer consultation near me, if you believe errors were made in your arrest process. 404-567-5515.