Monday, September 5, 2011

Implied Consent in Georgia


I have found that one of the key concepts of DUI procedure in Georgia is often misunderstood by motorists in our community.  This concept is known as “implied consent”. 

Implied consent is an idea that was created many years ago after cars and trucks became part of everyday life and the highways of our state became used with regularity.  The idea, which is outlined in the Georgia Code, encompasses the belief that because a motorist decides to use roads and other terrain to drive, that person has impliedly consented to submit to chemical testing if a law enforcement officer has a legitimate belief that the driver is impaired by consuming alcohol or drugs. 

When a police officer pulls a driver over and believes that the driver is impaired, he or she will frequently want for the driver to take a chemical test of their breath, blood, or urine.  Under most circumstances, the officer must read the implied consent warning.  The implied consent warning is typically read from a small card kept in the officer’s pocket.  The implied consent warning for motorists over 21 years of age informs suspects that (1) the officer is requesting a chemical test, (2) failure to submit to the test or blowing over 0.08 will result in a suspension of the driver’s license for 1 year, and (3) after taking the test, an independent test can be obtained. 

At this point, the motorist has an important choice to make.  A common misconception is that a driver should always refuse the test.  However, if the motorist refuses to take the state’s administered test, then the officer can file paperwork with the state whereby the motorist’s driver’s license will be subject to suspension.  This could put a defendant who may have just consumed 1 or 2 beers in an unfavorable position. 

However, if the motorist takes the state’s administered test, then the results of that test may be admissible in a future criminal prosecution for DUI.  A person who is well over the legal limit would have to deal with the consequences of a possible license suspension and the prospect of defending a case where a high blood alcohol content is involved.

Another important aspect of the implied consent law in Georgia focuses on the independent test.  I have had numerous clients who decided to take the state’s administered test and did not ask to have an independent test administered because they did not know that they had a right to get one. This request always needs to be made if the driver chooses to take the state’s test because the motorist has a right to have an independent test performed. 

The independent test is usually performed at a local hospital or other medical facility that has the means to legally obtain the driver’s blood or urine.  If the officer impedes the facilitation of an independent test or fails to reasonably accommodate the driver in obtaining an independent test, then the state’s administered test will be excluded from evidence at trial. 

The bottom line is that the implied consent law in Georgia is designed to strongly encourage motorists who are suspected of driving under the influence of alcohol or drugs to take a chemical sobriety test administered by law enforcement.  While there are differing opinions about the value of this law, it is probably a good idea overall.  The implied consent law assists law enforcement officers in keeping impaired drivers off the road. 

In order to avoid these consequences altogether, it would be a good idea to simply refuse to drive if you have had a sip of anything to drink.  Trying to gauge when you are “ok to drive” after you have been drinking is not a very effective way to avoid DUI related consequences.  Besides, having any amount of alcohol in your system while being pulled over by a law enforcement officer is never a pleasant experience. 

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