Georgia Implied Consent Law Explained

Georgia Implied Consent Overview

The Georgia Implied Consent Law is a broad set of statutes in the state of Georgia, laid out as Georgia Code Annotated sections 40-5-67 and 40-8-70.1, dealing with the obligation of a Georgia motorist to submit to testing of their blood or breath to determine their blood alcohol content when they are suspected of being a DUI criminal. These laws let the police officer charge that any driver that refuses to comply with a breath or blood test is subject to immediate arrest, regardless of whether the suspect had anything to drink that night.
When a police officer makes a suspension arrest on a motorist licensed in Georgia, an officer will insist that the suspected DUI further consent to a blood or a breath test of their blood alcohol content . The arresting officer will next warn the person that refusal to comply with his order to comply with the tests will result in immediate suspension of their driver’s license for a minimum of one year.
The law regarding implied consent is designed to make the consent of the driver to driving legally in the state a legal presumption. This means that the motorist is considered to have already given their consent to be tested for alcohol when they signed their driver’s license application. If the police officer has a valid and fairly applied reason to ask the driver for a blood or breath test to determine their blood alcohol level, then the driver has already consented to the testing by virtue of his or her application and license.

The Intent of the Georgia Implied Consent Statute

The purpose of Georgia’s Implied Consent Law is simple. Through implied consent, Georgia ensures that otherwise innocent motorist will not need to sacrifice the lives and safety of pedestrians and other motorists to avoid illegal roadside tests. The Implied Consent Law is designed to promote public safety by deterring impaired driving in Georgia. It gives the Georgia State Patrol and other law enforcement agencies the right to request a breath or blood test from any driver suspected of drunk driving. Since its introduction, the law has made it a lot easier for law enforcement to catch and prosecute drunk drivers. This has helped reduce the amount of drunk driving that occurs in Georgia. According to the Georgia Department of Transportation, alcohol use is the leading cause of death in fatal crashes for drivers in Georgia. If drivers are operating under heavy alcohol influence, they do not have a well-functioning brain, which affects nearly every decision you make. Thus, the only way to manage their decisions, which are likely to cause a fatal accident, is to get them off the road. The Georgia Department of Transportation reports that impaired drivers (with a Blood Alcohol Content above the 0.08 legal limit) involved in alcohol-related crashes killed 337 Georgians in 2008. A Georgia Department of Transportation report also found that alcohol use is the leading cause of death in fatal crashes for drivers with illegal Blood Alcohol Concentration (BAC) levels. Thus, the purpose of Georgia’s Implied Consent Law is to protect innocent lives from Georgia’s impaired drivers.

How the Georgia Implied Consent Statute Works

The Georgia implied consent law requires that any person who is arrested on suspicion of driving under the influence submit to a chemical test. Most commonly, the officer will request either a breath test administered through the use of an Intoxilyzer or a blood test. However, if you submit to a test at the request of law enforcement, and the resulting sample shows that your blood alcohol content exceeded the legal limit, then your driver’s license and driving privilege will automatically be suspended as detailed in the following section.
When law enforcement suspects that you are driving under the influence, but does not have the requisite probable cause to compel you to submit to a chemical test, they may request that you consent to a test voluntarily. Many times this is the situation where there is a breath test in addition to a blood test. However, if you refuse to consent to the test, it can be used against you as evidence in a civil action against you for administrative suspension as detailed below. In addition, under OCGA 40-5-67.1 the arresting officer may request that you take a breath test if you are involved in a Georgia automobile accident and there is evidence that you were driving under the influence. In this situation, if you refuse (and you have not previously given the law enforcement officer written consent), your license will be suspended.

Refusal of a Chemical Test

The consequences of refusing to provide a blood or breath sample when requested by law enforcement officer are automatic and severe. The law provides that if any person refuses to submit to a state administered chemical test they will be subject to an administrative driver’s license suspension pending a hearing and in addition, license suspension in the state of Georgia will be for a period of one year. The Implied Consent Laws of Georgia mandate that you allow a provided chemical test of your breath or other bodily substances as requested by law enforcement officers. The penalties that you face from the Georgia Department of Driver Services are as follows: 1st refusal-immediate license suspension of 12 months; 2nd refusal or 1st refusal within the prior 5 years-immediate 36 months license suspension 3rd or greater refusal within the prior 5 years-immediate 60 months or lifetime license suspension. Further, when an administrative driver’s license suspension is ordered pursuant to this code section, the suspension shall remain in effect if charged with DUI (alcohol and/or drugs) within 30 days after issuance of the permit until the date of trial or plea of guilty to any offense relating to driving under the influence of alcohol or drugs (drugs defined as scheduled substances pursuant to the Georgia Controlled Drugs Act (OCGA § 16-13-21) or a combination of alcohol or drugs), or any similar violation under the laws of another jurisdiction of the United States, including any plea of nolo contendere, or the entry of any plea bargain providing for a reduction of any such charge by the individual. Upon conviction or plea of guilty, a conviction of an alternate charge, or guilty plea to an alternate charge, the penalty shall not be different than the administrative driver’s license suspension period imposed. However, upon a finding of not guilty, a formal dismissal, or an entry of nolle prosequi, the administrative driver’s license suspension shall cease. Eligibility to apply for limited driving privileges is available in all DUI refusals except those resulting in a blood test revealing a .08% or more blood alcohol content. O.C.G.A. § 40-5-67.1.

Your Rights and Legal Challenges

Even though the Georgia Implied Consent Law deals with intoxicated driving, the threshold question is usually whether a person has been driving at all. Questions such as: (1) Was my client operating the vehicle? (2) Was my client the owner or merely a passenger? (3) Did the stop and arrest occur in Georgia? When approaching the question of whether your client has faced an implied consent violation at all, remember that you, as a Georgia attorney, may gain access to a government database of Georgia drivers’ licenses, which contains the crucial information for the above questions. This database can be access by a private website or a public access terminal in the courthouse. Assuming your client did drive in Georgia, he or she is not necessarily guilty of a violation of the Georgia Implied Consent Law. First, the implied consent warning must have been given "immediately." Therefore, even if a simple stop leads to an arrest for alleged driving under the influence, the failure to immediately warn holder of the drivers’ license could be grounds for throwing out any test results . Second, a breath test must be given within "a reasonable about of time" from driving. What constitutes a "reasonable time" is a factual question for the jury; however, based on several cases dealing with the issue, a delay of more than two hours may be unreasonable. While these arguments may work from the outset to avoid an implied consent violation, a negative ruling at the District Court level can be appealed to the Superior Court. Moreover, if the stop leading to the arrest involved an unreasonable delay, a motion to suppress may be appropriate. In Georgia, such a motion must be filed within 10 days after the arraignment, unless good cause is shown for the delay. If a motion to suppress is denied, it too can be appealed to the Superior Court. In addition, an arrest for driving under the influence will involve a hearing before the Georgia Department of Driver Services. At this Department of Driver Services Hearing, a lawyer can argue all of the above torts.

Legal Developments and Recent Changes

Georgia has enacted several changes to the Implied Consent Law in the past few years. An amendment in 2006 changed the legal term for someone under the age of 21 who is accused of having driven under the influence of alcohol from "minor" to "underage" and added a right to appeal a suspension under the Implied Consent Law. SB 292, which took effect July 1, 2017, creates a new section of the Georgia Code of Criminal Procedure to extend the time to perfect certification for alcohol and drug cases tried in magistrate court to 60 days; adds juries in magistrate court for DUI county ordinances; expands the offense of operating under the influence (DUI) to include prescription medications; requires ignition interlock devices for all DUI convictions; creates a new portable breath testing certification process; enlarges the scope of implied consent warnings not only to DUI but also to the new categories of operating under the influence of drugs (DUID) or a combination of drug and alcohol (DUI) convictions; and creates alternative procedures for guilty mail-in pleas. Appellate courts have recently considered whether it is reversible error for the trial judge to refuse to give a requested charge to the jury about circumstantial evidence of intoxication. When the charge is not given, the prosecutor’s argument about the defendant’s failure to introduce exculpatory evidence on that subject is impermissible.

Tips for Georgia Residents

Georgians who plan to get behind the wheel should keep a few simple pieces of advice in mind. Most importantly, they should never, ever drive after drinking. Fortunately, cab rides are cheap, insurance will even cover the cost, and we live in a city where Uber and Lyft abound. These are our best friends, and if someone else is able to take over behind the wheel, everyone is better for it.
Also, stay tuned into the news, many cities and counties have programs that provide sober rides home for reckless partiers at Christmas and on New Year’s Eve and Day. There really is no excuse. Don’t drink and drive under any circumstances.
Beyond that, don’t walk around thinking you know more than you do. Then, as now, a breathalyzer machine is going to tell you what it’s going to tell you. The whole point of the arrest is to take you to jail, give you a blood alcohol test , and use that as evidence. Even if you think the machine is broken, you may be assuming a bit too much. At the very least, ask for a blood alcohol test. It’s not uncommon that should this case go to trial, the arresting officer’s testimony will be quite a bit different from the video taken of your field sobriety tests. But this won’t matter because almost all D.U.I. charges are pled out these days. In fact, only about five percent of those facing an alcohol-related driving charge ever go to trial.
So, after the arrest there’s an administrative license sanction, which can and often is contested, and then the criminal charge, which is also contested, but most people end up pled guilty. If you try a bunch of cases, even in front of judges reputed to be the most severe, you’ll know how rare it is to win one. So, play it safe, don’t drink and drive, and if you must, have a cab doing the driving.