Implied Consent to Chemical Test; Administration of Test; Procedure

  1. Law
  2. Georgia Code
  3. Motor Vehicles and Traffic
  4. Drivers' Licenses
  5. Commercial Drivers' Licenses
  6. Implied Consent to Chemical Test; Administration of Test; Procedure

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  1. Any person who drives a commercial motor vehicle anywhere in the state shall be deemed to have given consent, subject to the provisions of Code Sections 40-5-55 and 40-6-392, to a test or tests of that person's blood, breath, or urine for the purpose of determining that person's alcohol concentration or the presence of other drugs.
  2. A test or tests may be administered at the direction of a law enforcement officer who, after stopping or detaining the commercial motor vehicle driver, has probable cause to believe that driver was driving a commercial motor vehicle while having any measurable alcohol in his or her system.
  3. A person requested to submit to a test as provided in subsection (a) of this Code section must be warned by the law enforcement officer requesting the test that a refusal to submit to the test will result in that person's being disqualified from operating a commercial motor vehicle for one year under Code Section 40-5-151 and from operating a private motor vehicle as provided in Code Section 40-5-67.1.
  4. If the person refuses testing, the law enforcement officer must submit an affidavit to the department within ten days of such refusal certifying that the test was requested pursuant to subsection (a) of this Code section and that the person refused to submit to testing.
  5. Upon receipt of the affidavit submitted by a law enforcement officer under subsection (d) of this Code section, the department must disqualify the driver from driving a commercial motor vehicle for a period of one year as provided under Code Section 40-5-151 and, if the driver refused testing, from operating a private motor vehicle as provided under Code Section 40-5-67.1. If the driver is in possession of a driver's license, the officer shall take possession of the license and attach it to the affidavit.

(Code 1981, §40-5-153, enacted by Ga. L. 1989, p. 519, § 1; Ga. L. 1990, p. 2048, § 4; Ga. L. 1992, p. 2564, § 11; Ga. L. 2000, p. 951, § 5-60.)

Law reviews.

- For note on 1992 amendment of this Code section, see 9 Ga. St. U.L. Rev. 298 (1992).

JUDICIAL DECISIONS

Consent obtained by misleading information.

- Police officer's warning to a nonresident defendant that: "Under OCGA § 40-5-55 and this section, you will lose your privilege to operate a motor vehicle from six to twelve months should you refuse to submit to the designated State administered chemical test" omitted the crucial fact that refusal to take the test would affect the defendant's ability to drive "on the highways of this state." Thus, the defendant was deprived of making an informed choice, and the test results were inadmissible; overruling, Anthony v. State, 211 Ga. App. 622, 441 S.E.2d 70 (1993) and State v. Reich, 210 Ga. App. 407, 436 S.E.2d 703 (1993). State v. Coleman, 216 Ga. App. 598, 455 S.E.2d 604 (1995).

Right to an alternative test.

- Defendant's failure to complete a breath test without justification negated the defendant's right to an alternative test. Allen v. State, 229 Ga. App. 435, 494 S.E.2d 229 (1997).

Adequacy of warning.

- Notices advising the defendant that if the defendant refused testing the defendant would be disqualified from operating a commercial motor vehicle for a minimum of one year were adequate, even though the notices did not advise the defendant that refusal to submit to the tests could also disqualify the defendant from operating a private motor vehicle. State v. Becker, 240 Ga. App. 267, 523 S.E.2d 98 (1999).

Warning not required for alco-sensor test.

- O.C.G.A. § 40-5-153(c), regarding implied consent warnings of commercial drivers, did not apply to an alco-sensor test, which merely detected the presence, not concentration, of alcohol that was given to a driver who drove past an inspection station in a truck with a hazardous materials placard. Tunali v. State, 311 Ga. App. 844, 717 S.E.2d 341 (2011).


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