Implied Consent

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Implied Consent

What is Georgia’s Implied Consent law?

Georgia’s Implied Consent law can “require [a person] to submit to state administered chemical tests of your blood, breath, urine, or other bodily substances” in order to determine if [he or she is] DUI.

At first glance, this would seem to be at odds with the Fourth Amendment, which states that:

“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation…”

Georgia courts have found the Implied Consent Law to be constitutionally permissible, however.  Why?  Because valid consent is a long-standing exception to the Fourth Amendment’s warrant requirement.  For example, the police can, without a warrant and for no reason at all, knock on your door and ask to search your house.  So long as the police didn’t use coercion to get you to agree, if you give your consent, they can search your house and whatever they find there can be used against you in court.  This is relevant in a DUI case because all Georgia drivers are deemed to have given their consent implicitly in the event they are arrested for DUI, just by getting behind the wheel of a car within the state.

A driver may still refuse to submit to chemical testing, however.  State v. Stewart, 286 Ga.App. 542 (2007).  However, there are consequences of refusing to submit to testing.  It may result in license suspension.  Further, a person’s refusal to cooperate with the State can be used against him or her at trial.  This is in contrast to, for example, the Fifth Amendment’s protections against self-incrimination — in that situation, a person’s choice to remain silent cannot be used against him or her at trial.  The police are required to inform drivers of these potential consequences.  This is where the Implied Consent Warning, which is read just after a person is arrested for DUI, comes in.

The Georgia Implied Consent Warning

There are actually 3 different Georgia Implied Consent Warnings; one that is read to drivers under 21 years old (click here to read it), one that is read to drivers with CDL licenses (click here to read it), and one that is read to drivers over 21 years of age.  The latter, which I encounter most often in my practice, reads:

Georgia law requires you to submit to state administered chemical tests of your blood, breath, urine, or other bodily substances for the purpose of determining if you are under the influence of alcohol or drugs. If you refuse this testing, your Georgia driver’s license or privilege to drive on the highways of this state will be suspended for a minimum period of one year. Your refusal to submit to the required testing may be offered into evidence against you at trial.

If you submit to testing and the results indicate an alcohol concentration of 0.08 grams or more, your Georgia driver’s license or privilege to drive on the highways of this state may be suspended for a minimum period of one year. After first submitting to the required state tests, you are entitled to additional chemical tests of your blood, breath, urine, or other bodily substances at your own expense and from qualified personnel of your own choosing. Will you submit to the state administered chemical tests of your blood/breath/urine under the implied consent law?

The purported purpose of this warning is to give drivers all the information they need to make an informed decision about whether or not to submit to a state-administered chemical test.  Because of this purpose, if a police officer misreads the notice, or otherwise gives the driver misleading information, the results of any test taken by that driver may be suppressed from evidence.  Sauls v. State, 744 S.E.2d 735 (2013).

For example, in Wallace v. State, the deputy read Wallace the informed consent notice as written, but then made follow up comments that indicated that Wallace’s refusal to submit to the test would not be held against him in court.  The Georgia Court of Appeals found that this “altered the substance of the notice” such that Wallace’s decision to submit was not based on accurate information.  Wallace v. State, 751 S.E.2d 887 (2013).

In determining whether the implied consent notice was properly given, the test is whether the notice given was “substantively accurate” so as to permit the driver to make an informed decision about whether to consent to testing.  State v. Barnard, 740 S.E.2d 837 (2013).

Consent

Until 2015, Georgia courts have held that a person who merely acquiesces to testing after the arresting officer reads the Implied Consent warning has consented to testing, therefore validly eliminating the Fourth Amendment’s warrant requirement.

However, in Williams v. The State, the Georgia Supreme Court found this to be insufficient.  In Williams, the Supreme Court found that “mere compliance with statutory implied consent requirements does not, per se, equate to actual, and therefore voluntary, consent on the part of the suspect.”  Williams v. The State, 296 Ga. 817 (2015).  Rather, the State must prove that the suspect gave “actual consent” to the procuring and testing of his blood, which would require “the determination of the voluntariness of the consent under the totality of the circumstances.”  Id.

Voluntariness must “reflect an exercise of free will, not merely a submission to or acquiescence in the express or implied assertion of authority.”  State v. Austin, 310 Ga.App. 814 (2011).  To determine voluntariness under the totality of the circumstances, courts may evaluate:

  • The use of physical force;
  • The use of prolonged questioning;
  • The accused person’s age;
  • The accused person’s level of education;
  • The accused person’s intelligence;
  • The length of detention;
  • Advisement of constitutional rights; and
  • The psychological impact of these factors on the accused.

State v. Austin, 310 Ga.App. 814 (2011).  While severe intoxication may be evidence that consent was not voluntary, such a finding is not required if other circumstances indicate that the consent was voluntary.  State v. Depol, 336 Ga.App. 191 (2016).

It is important to note that nothing in the law prevents the police from getting a warrant for a blood draw, though this warrant must still be supported by probable cause and presented to a magistrate judge like any other warrant.  Since the 2015 change in the law, some Georgia officers have begun relying more heavily on warrants rather than on implied consent.

Timing of the Implied Consent Warning

Implied consent warnings must be given in a timely manner; otherwise, the resulting blood alcohol test results are subject to suppression.  Perano v. State, 250 Ga. 704 (1983).  The law requires warnings to be read “at the time of arrest,” or as soon as the circumstances of the case warrant.  Dunbar v. State, 283 Ga.App. 872 (2007).  A delay may be warranted where circumstances prevent giving the advice immediately.  Evans v. State, 274 Ga.App. 845 (2005).

Note that the implied consent is triggered as soon as a person is no longer free to leave — this does not require the officer to explicitly tell the person that he or she is “under arrest.”  Hough v. The State, 279 Ga. 711 (2005).

Implied Consent in Serious Injury Cases

The rules regarding implied consent and chemical testing are different in cases where:

  • The driver suffers a serious injury,
  • The driver’s passenger dies or suffers a serious injury,
  • A person in another vehicle dies or suffers a serious injury,
  • A pedestrian is seriously injured or killed, or
  • A person rendering aid to persons injured in a traffic accident dies or suffers a serious injury.

Snyder v. State, 283 Ga. 211 (2008).  In DUI cases where no injuries occur, the driver must be under arrest prior to being read the implied consent warning.  In cases where serious injury or death result, however, the police may request that the driver submit to a chemical test if the officer has probable cause to believe the driver was under the influence at the time of the accident, even prior to arrest.  Id.

Why do I need a lawyer?

It is equally important to have a quality Georgia DUI Attorney in a DUI case, whether you submitted to the test or not.  If you submitted to the test, that means the State has evidence of your blood alcohol concentration.  Juries often find that evidence to be convincing.  But law enforcement frequently fails to comply with the rules surrounding the implied consent warning, and that can be very helpful.  It may even result in the test results being suppressed, or kept out of evidence.  That can be the difference between winning and losing your DUI case.

If you declined to take the State-Administered Chemical Test, you are facing the possibility of license suspension, as well as other major consequences.  While the State may not be able to prove your blood alcohol with a numerical certainty, you can still be convicted of DUI.  In that situation, you need a lawyer who can help prove that you were not under the influence, or that the police otherwise did something wrong during your arrest.

In both situations, it is very important to have a Georgia DUI Lawyer who knows the law through and through, and who has the patience and determination to parse through every piece of evidence and discover that piece that can help win your case.  Call me today.