In Georgia DUI law, the term “implied consent” is used often and can have important ramifications for someone arrested for a DUI charge. We wanted to take a closer look at what, exactly, is meant by implied consent and why it can be so important.
O.C.G.a. § 4-5-55 - What Is a Refusal?
Under Georgia law, O.C.G.A. § 4-5-55, if you are suspected by a law enforcement officer of DUI, you must submit to chemical testing of your blood, breath, urine, or other bodily substance for the purposes of determining the presence of alcohol or drugs, or your driving privileges may be suspended for a minimum period of one year.
If an officer stops you and suspects that you are diving under the influence, the officer can request you to submit to a chemical test. The officer will initiate this by reading you the implied consent law (often contained on a bright neon green card) and will ask you to verbally consent. You are requested to state a verbal ‘yes' or ‘no' at the time the officer reads the card to you. If you say anything other than ‘yes,' the officer can, under Georgia law, consider it a refusal. If you do not consent when the officer reads the card, he will consider it to be a refusal and will notify driver services of the refusal using a document known as a Department of Driver Services “1205 form.” And even if you take the test requested, a police officer can legally try to suspend your driver's license if you register greater than .08.
Administrative License Suspension - How Do You Appeal?
If you refuse the testing, the officer can seek to have an administrative license suspension applied to your license, meaning the Georgia Department of Driver Services will suspend your license for a period of time. You can, however, file an appeal of the suspension with the Department of Driver Services. You have 30 days from the arrest to file an appeal. This is actually a separate legal matter between you, the Georgia Department of Driver Services, and the arresting officer; it is related to but not a part of the criminal case for DUI. An appeal will trigger a hearing being scheduled in front of a Georgia Office of State Administrative Hearings (“OSAH”) judge to determine if your license will be suspended.
Elliott v. State
In 2019, however, Georgia lawmakers revised the implied consent law because the Georgia Supreme Court said a driver's refusal to take a breath test cannot be used against in them in court, see Elliott v. State, 305 Ga. 179 (2019). The Georgia Supreme Court held that a defendant had the right to be free from compelled self-incrimination regardless of the severity of the alleged crimes.
The implied consent law now removes the language stating that refusing the breath test can be used against you in the court of law. This has caused many officers to obtain blood tests for the purposes of determining if you have drugs/alcohol in your system. However, it is very important to note that a refusal of a blood, breath or urine test can have important negative implications nonetheless.
If you have been charged with a DUI, you need to act quickly. There are many deadlines that can seriously impact your case and driving privileges. Call us now at (678) 712-8561.