If any such notice is used by a law enforcement officer to advise a person of his or her rights regarding the administration of chemical testing, such person shall be deemed to have been properly advised of his or her rights under this Code section and under Code Section 40-6-392 and the results of any chemical test, or the refusal to submit to a test of such person's blood or urine, shall be admitted into evidence against such person. Such notice shall be read in its entirety but need not be read exactly so long as the substance of the notice remains unchanged.
(1) Implied consent notice for suspects under age 21:
"The State of Georgia has conditioned your privilege to drive upon the highways of this state upon your submission 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 blood or urine testing may be offered into evidence against you at trial. If you submit to testing and the results indicate an alcohol concentration of 0.02 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 requested 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 ( designate which test )?" (2) Implied consent notice for suspects age 21 or over: "The State of Georgia has conditioned your privilege to drive upon the highways of this state upon your submission 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 blood or urine 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 requested 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 ( designate which test )?" (3) Implied consent notice for commercial motor vehicle driver suspects: "The State of Georgia has conditioned your privilege to drive upon the highways of this state upon your submission 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, you will be disqualified from operating a commercial motor vehicle for a minimum period of one year. Your refusal to submit to blood or urine testing may be offered into evidence against you at trial. If you submit to testing and the results indicate the presence of any alcohol, you will be issued an out-of-service order and will be prohibited from operating a commercial motor vehicle for 24 hours. If the results indicate an alcohol concentration of 0.04 grams or more, you will be disqualified from operating a commercial motor vehicle for a minimum period of one year. After first submitting to the requested 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 ( designate which test )?"
(d.1)Nothing in this Code section shall be deemed to preclude the acquisition or admission of evidence of a violation of Code Section 40-6-391 if obtained by voluntary consent or a search warrant as authorized by the Constitution or laws of this state or the United States.
(i) Subject to the limitations of this subsection, any law enforcement officer who attends a hearing provided for by subsection (g) of this Code section for the purpose of giving testimony relative to the subject of such hearing shall be compensated in the amount of $20.00 for each day's attendance at such hearing. In the event a law enforcement officer gives testimony at two or more different hearings on the same day, such officer shall receive only $20.00 for attendance at all hearings. The compensation provided for in this subsection shall not be paid to any law enforcement officer who is on regular duty or who is on a lunch or other break from regular duty at the time the officer attends any such hearing. The compensation provided for by this subsection shall be paid to the law enforcement officer by the department from department funds at such time and in such manner as the commissioner shall provide by rules or regulations. The commissioner shall also require verification of a law enforcement officer's qualifying to receive the payment authorized by this subsection by requiring the completion of an appropriate document in substantially the following form:
IMPLIED CONSENT HEARING ATTENDANCE RECORD
OFFICER: ________________ S.S. No. _______________________________ ADDRESS: _________________________________________________________________ Street City State ZIP Code A.M. P.M. CASE: ____________________________________________________________________ This is to certify that the police officer named above attended an implied consent hearing as a witness or complainant on the date and time shown above. HEARING OFFICER: ______________ TITLE: ___________________________________ I certify that I appeared at the implied consent hearing described above on the date and time shown above and that I was not on regular duty at the time of attending the hearing and that I have not received and will not receive compensation from my regular employer for attending the hearing. Signature of officer: _________________________________________________ APPROVED FOR PAYMENT: __________________________________________________ Comptroller
(j) Each time an approved breath-testing instrument is inspected, the inspector shall prepare a certificate which shall be signed under oath by the inspector and which shall include the following language:
"This breath-testing instrument (serial no. ______________) was thoroughly inspected, tested, and standardized by the undersigned on (date ______________) and all of its electronic and operating components prescribed by its manufacturer are properly attached and are in good working order." When properly prepared and executed, as prescribed in this subsection, the certificate shall, notwithstanding any other provision of law, be self-authenticating, shall be admissible in any court of law, and shall satisfy the pertinent requirements of paragraph (1) of subsection (a) of Code Section 40-6-392 and subparagraph (g)(2)(F) of this Code section.
(Code 1981, §40-5-67.1, enacted by Ga. L. 1992, p. 2564, § 6; Ga. L. 1994, p. 472, § 1; Ga. L. 1994, p. 1600, § 3-6; Ga. L. 1995, p. 1160, §§ 1-3; Ga. L. 1995, Ex. Sess., p. 5, § 1; Ga. L. 1997, p. 143, § 40; Ga. L. 1997, p. 760, § 20; Ga. L. 1998, p. 210, § 2; Ga. L. 2000, p. 951, §§ 5-29 - 5-32; Ga. L. 2000, p. 1589, § 3; Ga. L. 2001, p. 208, § 1-3; Ga. L. 2006, p. 329, § 2/HB 1275; Ga. L. 2007, p. 47, § 40/SB 103; Ga. L. 2010, p. 9, § 1-80/HB 1055; Ga. L. 2011, p. 355, § 9/HB 269; Ga. L. 2016, p. 323, § 1-4/HB 205; Ga. L. 2019, p. 295, § 2/HB 471.)
The 2016 amendment, effective July 1, 2017, in paragraph (f)(1), substituted "45 day temporary driving permit" for "30 day temporary permit" in the second sentence, deleted "calendar" following "ten" in the third and fifth sentences, and inserted "driving" in the fourth sentence; in paragraph (g)(1), in the first sentence, substituted "disqualified from driving" for "disqualified from operating" near the middle, substituted "30 days" for "ten business days" in the middle, and added the second sentence; in paragraph (g)(3), substituted "30 days specified in paragraph (1) of this subsection" for "ten business days specified above" in the second sentence, added the third sentence, and substituted "temporary driving permit" for "temporary permit" in the former sentence; designated the existing provisions of paragraph (g)(4) as subparagraph (g)(4)(A), and, in subparagraph (g)(4)(A), substituted "Except as where provided to the contrary in subparagraph (B) of this paragraph, in the event" for "In the event" in the first sentence; and added subparagraph (g)(4)(B).
The 2019 amendment, effective April 28, 2019, substituted the present provisions of subsection (b) for the former provisions, which read: "At the time a chemical test or tests are requested, the arresting officer shall select and read to the person the appropriate implied consent notice from the following:
"(1) Implied consent notice for suspects under age 21:
"'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 0.02 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 ( designate which tests ) under the implied consent law?'
"(2) Implied consent notice for suspects age 21 or over:
"'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 ( designate which tests ) under the implied consent law?'
"(3) Implied consent notice for commercial motor vehicle driver suspects:
"'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, you will be disqualified from operating a commercial motor vehicle 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 the presence of any alcohol, you will be issued an out-of-service order and will be prohibited from operating a motor vehicle for 24 hours. If the results indicate an alcohol concentration of 0.04 grams or more, you will be disqualified from operating a commercial motor vehicle 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 ( designate which tests ) under the implied consent law?'
"If any such notice is used by a law enforcement officer to advise a person of his or her rights regarding the administration of chemical testing, such person shall be deemed to have been properly advised of his or her rights under this Code section and under Code Section 40-6-392 and the results of any chemical test, or the refusal to submit to a test, shall be admitted into evidence against such person. Such notice shall be read in its entirety but need not be read exactly so long as the substance of the notice remains unchanged."
Code Commission notes.- Pursuant to Code Section 28-9-5, in 1992, in paragraph (g)(1), "section" was substituted for "Section" and a comma was inserted following "requested", and "subsection (g)" was substituted for "subsection (i)" in subsection (i).
Pursuant to Code Section 28-9-5, in 2019, quotation marks were added at the beginning of the implied consent notice paragraphs in subsection (b).
Editor's notes.- Ga. L. 1994, p. 1600, § 11, not codified by the General Assembly, provides that the provisions of the Act shall apply only to cases arising out of arrests occurring on or after January 1, 1995, except that the provisions amending subsection (a) of Code Section 40-6-391.1, restricting the acceptance of a plea of nolo contendere to a charge of violating Code Section 40-6-391, and the provisions amending subsection (c) of Code Section 40-6-391, changing the criminal penalties for violations of the section, shall become effective July 1, 1994, and except that the provisions amending subsection (g) of Code Section 40-5-67.1, relating to the time for requesting a hearing on an administrative suspension, the stay of a suspension pending such hearing, and the early termination of an administrative suspension under certain conditions shall apply to cases pending on July 1, 1994.
Ga. L. 1995, p. 1160, § 5, not codified by the General Assembly, provides that the Act shall apply to all cases pending at the time of its approval by the Governor or its becoming law without such approval, except that the provisions regarding the requirement for two breath samples set forth in subparagraph (a)(1)(B) of Code Section 40-6-392 shall not apply to arrests made prior to January 1, 1995. The Act was approved by the Governor on April 21, 1995.
Ga. L. 1997, p. 760, § 1, not codified by the General Assembly, provides: "This Act shall be known and may be cited as the 'Teen-age and Adult Driver Responsibility Act'. "
Ga. L. 1997, p. 760, § 27, not codified by the General Assembly, provides that the amendment made by the Act to this Code section shall apply to offenses committed on or after July 1, 1997, and, except for subsection (b.1) of this Code section, shall not apply to offenses committed prior to that date.
Ga. L. 1998, p. 210, § 1, not codified by the General Assembly, provides: "The General Assembly finds and declares that persons driving motor vehicles on public roads while under the influence of alcohol or drugs or while having an unlawful alcohol concentration has been and remains a serious and deadly problem in this state and requires the diligent and utmost efforts of law enforcement officials to apprehend and prosecute persons committing such violations. The General Assembly further finds that a law enforcement officer should be allowed to initially require a combination of tests and should subsequently be allowed to require additional tests of any substance not initially tested. The General Assembly further finds and declares that while suspects in such cases should be informed of their rights regarding the administration of chemical testing, no such suspect is entitled to a notice which tracks the exact language of the implied consent statute, so long as the substance of the notice remains unchanged."
Ga. L. 2000, p. 1589, § 16, not codified by the General Assembly, provides that the amendment to this Code section is applicable with respect to notices delivered on or after July 1, 2000.
For application of this statute in 2020, see Executive Order 03.25.20.01.
A listing of Executive Orders issued in 2020 can be found at https://gov.georgia.gov/executive-action/executive-orders/2020-executive-orders.
Law reviews.- For article commenting on the 1997 amendment of this Code section, see 14 Ga. St. U.L. Rev. 203 (1997). For survey article on criminal law and procedure for the period from June 1, 2002 through May 31, 2003, see 55 Mercer L. Rev. 117 (2003). For annual survey on criminal law, see 71 Mercer L. Rev. 69 (2019). For note on 1992 enactment of this Code section, see 9 Ga. St. U.L. Rev. 298 (1992). For note on the 1995 amendment of this Code section, see 12 Ga. St. U.L. Rev. 289 (1995). For note, "Rodriguez v. State: Addressing Georgia's Implied Consent Requirements for Non-English-Speaking Drivers," see 54 Mercer L. Rev. 1253 (2003). For comment, "Is There a Georgia Supreme Court, Problem? Analyzing the Georgia Supreme Court's New Peculiar Approach Towards Breathalyzers and Implied Consent Law," see 71 Mercer L. Rev. 393 (2019).
JUDICIAL DECISIONSANALYSIS
General Consideration
Editor's notes.
- In light of the similarity of the statutory provisions, decisions under former Code 1933, §§ 68A-306, 68A-902.1, and Ga. L. 1968, p. 448 are included in the annotations for this Code section.
Constitutionality of implied consent notice.
- Implied consent notice given to defendants pursuant to O.C.G.A. § 40-5-67.1 did not violate due process on the basis that the notice is incomplete, misleading, and coercive. Klink v. State, 272 Ga. 605, 533 S.E.2d 92 (2000).
Police officers in Georgia are permitted to administer bodily alcohol concentration tests to motorists in order to determine whether the motorists are driving under the influence of alcohol or drugs without first warning that the results of such tests may be used in a criminal trial for DUI. Lutz v. State, 274 Ga. 71, 548 S.E.2d 323 (2001).
Implied consent statute does not violate the dictates of equal protection set forth in the Georgia and federal Constitutions. Lutz v. State, 274 Ga. 71, 548 S.E.2d 323 (2001).
Because an appellate court could not assume that the implied consent notice standing alone would coerce reasonable people to whom it was read, the defendant's facial challenge failed. Fazio v. State, 302 Ga. 295, 806 S.E.2d 544 (2017).
Implied consent statute was not unconstitutional under the Fourth Amendment or Ga. Const. 1983, Art. I, Sec. I, Para. XIII because, even if the statute were coercive, police could obtain a breath test without a warrant as a search incident to arrest. Fazio v. State, 302 Ga. 295, 806 S.E.2d 544 (2017).
Ga. Const. 1983, Art. I, Sec. I, Para. XVI was held to protect against compelled breath tests and affords individuals a constitutional right to refuse testing. Submitting to a breath test implicates a person's right against compelled self-incrimination and prior decisions holding otherwise are overruled. Olevik v. State, 302 Ga. 228, 806 S.E.2d 505 (2017).
Measurement of blood alcohol content based on a breath test requires the cooperation of the person being tested and compelling a defendant to perform an act that is incriminating in nature is precisely what Ga. Const. 1983, Art. I, Sec. I, Para. XVI prohibits. Olevik v. State, 302 Ga. 228, 806 S.E.2d 505 (2017).
In a DUI under 21 and DUI less safe case, the trial court did not err in denying the defendant's motion to suppress, and in concluding that Georgia's implied consent notice for DUI suspects under 21 years of age was constitutional because the defendant's facial challenge failed as there was no evidence that O.C.G.A. § 40-5-67.1 created widespread confusion about the drivers' rights and the consequences for refusing to submit to a chemical test or for taking and failing that test; and the defendant's as applied challenge failed as the arresting officer acted in a professional and non-coercive manner; and, although the defendant was upset, a video recording sufficiently demonstrated that the defendant consented to the state-administered breath test. Bergstrom v. State, 347 Ga. App. 295, 819 S.E.2d 84 (2018).
Trial court's denial of the defendant's motion to suppress was reversed because the Georgia Supreme Court concluded that Ga. Const. 1983, Art. I, Sec. I, Para. XVI precluded admission of evidence that the suspect refused to consent to the breath test; thus, O.C.G.A. §§ 40-5-67.1(b) and40-6-392(d) were unconstitutional to the extent that the statutes allow the defendant's refusal to submit to a breath test to be admitted into evidence at a criminal trial. Elliott v. State, 305 Ga. 179, 824 S.E.2d 265 (2019).
Trial court's denial of defendant's motion to suppress was reversed because Georgia Supreme Court concluded that Ga. Const. Art. I, Sec. I, Para. XVI precluded admission of evidence that suspect refused to consent to breath test, thus, O.C.G.A. §§ 40-5-67.1(b) and40-6-392(d) were unconstitutional to the extent that they allow defendant's refusal to submit to a breath test to be admitted into evidence at criminal trial. Elliott v. State, 305 Ga. 179, 824 S.E.2d 265 (2019)(decided under former version of Code Section40-5-67.1)
Georgia Supreme Court concluded that Ga. Const. Art. I, Sec. I, Para. XVI precluded admission of evidence that suspect refused to consent to a breath test, thus, O.C.G.A. §§ 40-5-67.1(b) and40-6-392(d) were unconstitutional to extent that they allow defendant's refusal to submit to breath test to be admitted into evidence at criminal trial. Elliott v. State, 305 Ga. 179, 824 S.E.2d 265 (2019)(decided under former version of Code Section40-5-67.1)
Constitutionality of 1995 amendment.
- Amendment of O.C.G.A. § 40-5-67.1 effective in August, 1995, which changed the retroactive effect of the amendment effective in April, 1995, so that the amendment applied only to stops made after the effective date of the April amendment, rather than to cases pending on such date, did not violate federal or state ex post facto provisions or the uniformity or special laws provisions of the state constitution. State v. Martin, 266 Ga. 244, 466 S.E.2d 216 (1996).
Effect of the 1995 amendment on pending cases.
- See State v. Boone, 221 Ga. App. 256, 471 S.E.2d 53 (1996).
Retroactive application of amendment improper.
- Trial court erroneously applied the amendment of O.C.G.A. § 40-5-67.1(d) retroactively to the defendant's criminal matter, wherein the court denied suppression of a blood test result taken of the defendant as the investigating officer failed to provide the defendant with the requisite notice of the implied consent rights under O.C.G.A. § 40-5-55(a) prior to obtaining the defendant's consent; retroactive application of § 40-5-67.1(d) was improper because the amendment eliminated the defendant's substantive right to refuse to submit to testing. Williams v. State, 297 Ga. App. 626, 677 S.E.2d 773 (2009).
Implied consent provision unconstitutional.
- Trial court erred in denying the defendant's motion to suppress the results of a blood test the defendant consented to after a state trooper read the defendant the implied consent notice under O.C.G.A. § 40-5-67.1(b)(2), which informed the defendant that Georgia law required the defendant to submit to chemical testing, that the refusal to submit to testing would lead to the suspension of the defendant's driving privileges, and that the defendant's refusal might be offered into evidence against the defendant at trial; the defendant was not suspected of violating O.C.G.A. § 40-6-391 when the defendant was advised of the implied consent law, O.C.G.A. § 40-5-55(a) (which was unconstitutional), and the defendant's consent was invalid. Cooper v. State, 277 Ga. 282, 587 S.E.2d 605 (2003).
No valid equal protection claim.
- Trial court did not err in denying the defendant's motion to suppress results of breath tests as the statutory implied consent warning given to the defendant was not unconstitutional for not informing the defendant that the results of chemical testing could be used against a motorist at trial, even though the statutes involving intoxicated hunters and boaters gave such warning, as hunters and boaters were not similarly situated to motorists for purposes of an equal protection challenge. Young v. State, 275 Ga. 309, 565 S.E.2d 814 (2002).
Determination of actual consent required.
- Based on the United States Supreme Court decision in Missouri v. McNeely, in which the Court rejected a per se rule that the natural metabolization of alcohol in a person's bloodstream constitutes an exigency justifying an exception to the U.S. Const., amend. 4 search warrant requirement for nonconsensual blood testing in all driving under the influence cases, the Georgia Supreme Court overruled Strong v. State, 231 Ga. 514 (1973), to the extent that decision holds otherwise. Williams v. State, 296 Ga. 817, 771 S.E.2d 373 (2015).
No substantive legal rights created.
- Subsection (b) of O.C.G.A. § 40-5-67.1 does not create any substantive legal rights, but instead, the statute is a notice provision that prescribes the method by which a police officer should notify DUI suspects of their legal rights regarding chemical testing. State v. Levins, 235 Ga. App. 739, 507 S.E.2d 246 (1998).
Construction with O.C.G.A. § 40-5-55. - O.C.G.A. § 40-5-55 is the springboard for a law enforcement officer's duties under O.C.G.A. § 40-5-67.1 to request chemical testing of a driver's bodily substances and to inform the driver of the implied consent warning; the two statutes are in pari materia since the statutes relate to the same subject matter. Snyder v. State, 283 Ga. 211, 657 S.E.2d 834 (2008).
Purpose of statute.
- Purpose of the implied consent law is to notify drivers of the drivers' rights so that the drivers can make informed decisions; accordingly, appellate courts have suppressed the results of chemical tests when the driver was misinformed of the driver's rights and when the misinformation may have affected the driver's decision to consent. Kitchens v. State, 258 Ga. App. 411, 574 S.E.2d 451 (2002).
Standard of review.
- It was error to affirm a decision to suspend a driver's license when, after being advised of the implied consent rights and of the consequences of refusing to submit to a state-administered breath test, the driver refused the test; as the correct standard of review was the "any evidence" test because the hearing before the administrative law judge was conducted pursuant to O.C.G.A. § 40-5-67.1, the appeal in the superior court was expressly excepted from O.C.G.A. § 40-5-66(a), and had to be conducted pursuant to O.C.G.A. § 40-5-67.1(h); moreover, the administered breath tests were not invalid merely because the officer gave the breath tests ten minutes apart, and the driver's failure to give an adequate sample could not be used to suspend the license. Dozier v. Pierce, 279 Ga. App. 464, 631 S.E.2d 379 (2006).
No effect on implied consent.
- O.C.G.A. § 40-5-67.1, upon becoming effective, did not repeal that portion of O.C.G.A. § 40-6-392 regarding implied consent. O.C.G.A § 40-5-67.1 primarily concerns the methods and procedures to effect the administrative suspension of a driver's license based upon the use of chemical test results, does not address the admissibility of evidence in a criminal trial, and was intended to provide additional consent notice requirements. State v. Hassett, 216 Ga. App. 114, 453 S.E.2d 508 (1995).
An implied consent warning read to the defendant prior to the defendant's consent to a test did not adequately inform the defendant that the defendant's consent was for any purpose other than the stated purpose of prosecution for driving under the influence, therefor, the test results were properly suppressed in a prosecution for possession of cocaine. State v. Frazier, 229 Ga. App. 344, 494 S.E.2d 36 (1997).
Results of a blood test consented to by the defendant in response to the implied consent warning found in O.C.G.A. § 40-5-67.1 could not be used in a prosecution for possession of cocaine because use of the test to support the possession charge was beyond the scope of the consent given. State v. Jewell, 228 Ga. App. 825, 492 S.E.2d 706 (1997); State v. Burton, 230 Ga. App. 753, 498 S.E.2d 121 (1998).
State must demonstrate notice requirements.
- State cannot admit evidence of a defendant's chemical test results, or of the defendant's refusal to take a test, without demonstrating that the state met the implied consent notice requirements. Baird v. State, 260 Ga. App. 661, 580 S.E.2d 650 (2003).
Right to additional test.
- There is nothing about the plain language of either subsection (b)(3) of O.C.G.A. § 40-5-67.1 or O.C.G.A. § 40-6-392(b)(2) which would preclude the defendant from affirmatively choosing to have the state's qualified testing officer perform an additional breath test at the defendant's expense. Nawrocki v. State, 235 Ga. App. 416, 510 S.E.2d 301 (1998).
Defendant's motion to suppress the results of a blood test administered pursuant to a search warrant was properly denied because the statute dealing with chemical tests for alcohol or drugs in a defendant's blood did not grant the defendant the right to an independent test when the officer obtained a search warrant for a blood test; the defendant forfeited the defendant's right to independent testing by refusing the arresting officer's request to submit to a state-administered breath test after being advised under the implied consent law; and the defendant was not entitled to take advantage of the independent test incentive as the defendant refused to submit to the chemical testing requested by the arresting officer. Hynes v. State, 341 Ga. App. 500, 801 S.E.2d 306 (2017).
Right against self-incrimination.
- Use of a substance naturally excreted by the human body does not violate a DUI suspect's constitutional rights, and therefore there is no requirement that the suspect be informed of the suspect's right against self-incrimination by a police officer giving the suspect the implied consent notice. Nawrocki v. State, 235 Ga. App. 416, 510 S.E.2d 301 (1998).
Administrative and criminal prosecutions not double jeopardy.
- Suspension of the defendant's operator's license pursuant to administrative proceedings did not constitute former punishment foreclosing prosecution for driving under the influence in violation of double jeopardy provisions. Jackson v. State, 218 Ga. App. 677, 462 S.E.2d 802 (1995).
Stipulation at administrative license suspension hearing admissible in subsequent legal proceedings.
- Defendant, having accepted the benefit of the stipulation at the administrative license suspension (ALS) hearing in the form of the reinstatement of the defendant's license and having shown no fraud or mistake, acquiesced to counsel's stipulation to plead guilty to the driving under the influence of alcohol (DUI) at the ALS hearing and to the admissibility of the final decision from the ALS hearing in subsequent legal proceedings related to the DUI charge. Flading v. State, 327 Ga. App. 346, 759 S.E.2d 67 (2014).
Loss of commercial license.
- Implied consent notice given to a defendant under O.C.G.A. § 40-5-67.1(b)(2) did not violate due process; the ability to refuse to submit to chemical testing was not a constitutional right and as a trooper advised the defendant that a refusal to submit to testing could result in the suspension of the defendant's personal driver's license, the trooper was not required to also advise the defendant that under O.C.G.A. § 40-5-151(c), the defendant could also lose the defendant's commercial driver's license for life. Chancellor v. State, 284 Ga. 66, 663 S.E.2d 203 (2008).
Suspension of license not prosecution for double jeopardy purposes.
- Suspension of a driver's license at an administrative hearing was not punishment, nor was the hearing a prosecution for the purposes of double jeopardy; thus, a subsequent criminal prosecution for driving under the influence was not barred. Nolen v. State, 218 Ga. App. 819, 463 S.E.2d 504 (1995), cert. denied, 518 U.S. 1018, 116 S. Ct. 2550, 135 L. Ed. 2d 1070 (1996); Kirkpatrick v. State, 219 Ga. App. 307, 464 S.E.2d 882 (1995); Walsh v. State, 220 Ga. App. 514, 469 S.E.2d 526 (1996).
Payment of the fee required for reinstatement of a driver's license after the license was suspended following an arrest for driving under the influence was not punishment and did not bar a subsequent prosecution for driving under the influence. Thompson v. State, 229 Ga. App. 526, 494 S.E.2d 306 (1997); Morgan v. State, 229 Ga. App. 861, 495 S.E.2d 138 (1998).
No probable cause for arrest.
- Order denying the defendant's motion to suppress any evidence obtained as a result of arrest was reversed because the officer lacked probable cause to arrest the defendant for driving under the influence since the officer testified that the stop was initiated not because of the defendant's driving, but because of an obstructed license plate, and the defendant indicated no signs of intoxication following certain tests and the only evidence was defendant's admission the defendant had consumed a beer earlier. Bostic v. State, 332 Ga. App. 604, 774 S.E.2d 175 (2015).
Arrest requirement established.
- Testimony of police officer that the officer went to interview the defendant in a hospital emergency room where the defendant had been taken from the accident scene, that the officer placed the defendant under arrest prior to reading the defendant the implied consent warning, and that the defendant indicated the defendant understood, was sufficient to support a finding that the defendant was placed under arrest. Lee v. State, 222 Ga. App. 389, 474 S.E.2d 281 (1996).
Sufficient cause for arrest.- Arrestee failed to produce evidence creating a genuine issue of material fact with regard to the arrestee's Fourth Amendment claim; the smell of alcohol was sufficient to give the officer reasonable suspicion that the arrestee had been driving under the influence of alcohol. As the officer engaged in a reasonable investigation, including requesting that the arrestee submit to a breathalyzer test, the arrestee refused to cooperate and this refusal gave the officer probable cause to arrest the arrestee. Miller v. Harget, 458 F.3d 1251 (11th Cir. 2006).
Results cannot be used as basis for possession charge.
- Results of blood or urine tests obtained pursuant to the language of the implied consent warnings cannot be used as the basis for a possession charge since, under the language of the warnings, the suspect consents to such tests only for the purpose of determining whether the suspect was under the influence of drugs or alcohol, and thus the use of the tests for any purpose other than that exceeds the scope of the consent given. Cronan v. State, 236 Ga. App. 374, 511 S.E.2d 899 (1999).
Impact of voluntary consent to test.
- Pursuant to O.C.G.A. § 40-5-67.1(d.1), a trial court did not err in denying the defendant's motion to suppress based upon the officer's failure to give an implied consent warning before the test was administered because the defendant voluntarily consented to the breath test. Jones v. State, 319 Ga. App. 520, 737 S.E.2d 318 (2013).
Court's directed verdict of acquittal made issues moot.
- Defendant was unable to show harm from the denial of a pretrial motion to dismiss evidence of a breath test administered before the defendant was read the implied consent rights as required by O.C.G.A. § 40-5-67.1(b)(2), and without being informed of the right to an independent chemical analysis as required by O.C.G.A. § 40-6-392(a)(4) because at trial the trial court directed a verdict of acquittal on the charge of driving under the influence with a blood alcohol level higher than 0.08 percent. Hernandez v. State, 297 Ga. App. 177, 676 S.E.2d 795 (2009).
Failure to abide by statute renders test inadmissible.
- When a suspect requests an independent test but is unable to obtain the test, the results of the state-administered test cannot be used by the state as evidence against the suspect unless the failure to obtain the test is justified; an accused's right to have an additional, independent chemical test or tests administered is invoked by some statement that reasonably could be construed, in light of the circumstances, to be an expression of a desire for such test. Wright v. State, 338 Ga. App. 216, 789 S.E.2d 424 (2016), cert. denied, No. S17C0046, 2017 Ga. LEXIS 209 (Ga. 2017).
Informed decision impossible when "may" used instead of "will".
- Defendant's motion in limine to suppress evidence of the defendant's refusal to submit to a state-administered chemical test of the defendant's blood, breath, or urine was properly granted because the officer's error in giving the implied consent notice misled the defendant as to a serious consequence of refusing to submit to testing as the officer's statement to the defendant that the defendant's license "may be suspended," instead of "will be suspended," altered the substance of the implied consent notice by changing the mandatory suspension into a mere permissive possibility, and impaired the defendant's ability to make an informed decision about whether to submit to testing; thus, the defendant's refusal was rendered inadmissible. State v. Stroud, 344 Ga. App. 885, 812 S.E.2d 83 (2018).
State-administered tests should have been suppressed.
- Defendant's driving under the influence per se conviction was reversed because the trial court erred in admitting the results of the state-administered test; because the defendant's statements to the arresting officer could reasonably be construed as a request for an independent test and the defendant was not given an independent test after requesting one, the state-administered test results should have been suppressed. Wright v. State, 338 Ga. App. 216, 789 S.E.2d 424 (2016), cert. denied, No. S17C0046, 2017 Ga. LEXIS 209 (Ga. 2017).
Cited in Wells v. State, 212 Ga. App. 15, 440 S.E.2d 692 (1994); Miles v. Wells, 225 Ga. App. 698, 484 S.E.2d 720 (1997); Radcliffe v. State, 234 Ga. App. 576, 507 S.E.2d 759 (1998); Satterfield v. State, 252 Ga. App. 525, 556 S.E.2d 568 (2001); Leiske v. State, 255 Ga. App. 615, 565 S.E.2d 925 (2002); Quintana v. State, 276 Ga. 731, 583 S.E.2d 869 (2003); Pittman v. State, 286 Ga. App. 415, 650 S.E.2d 302 (2007); Davis v. State, 286 Ga. App. 443, 649 S.E.2d 568 (2007); Horne v. State, 286 Ga. App. 712, 649 S.E.2d 889 (2007); McWilliams v. State, 287 Ga. App. 585, 651 S.E.2d 849 (2007); Daniel v. State, 298 Ga. App. 245, 679 S.E.2d 811 (2009); Waterman v. State, 299 Ga. App. 630, 683 S.E.2d 164 (2009); Barrow v. Mikell, 331 Ga. App. 547, 771 S.E.2d 211 (2015), rev'd on other grounds, 298 Ga. 429, 782 S.E.2d 439 (2016).
Advisement to Driver of Rights
Effect of 1995 amendment.
- Because of the addition of subsection (b.1) of O.C.G.A. § 40-5-67.1 in 1995, in a case pending on August 18, 1995, involving an offense committed prior to April 21, 1995, the mandatory language of paragraph (b)(2) did not apply and a warning that clearly informed the defendant that the defendant could have an additional test by a qualified person of the defendant's own choosing was sufficient. Howard v. State, 219 Ga. App. 228, 465 S.E.2d 281 (1995); Dooley v. State, 221 Ga. App. 245, 470 S.E.2d 803 (1996); Stymest v. State, 221 Ga. App. 251, 470 S.E.2d 806 (1996).
Amendment of O.C.G.A. § 40-5-67.1 effective in August, 1995, which changed the retroactive effect of the amendment effective in April, 1995, so that the amendment applied only to stops made after the effective date of the April amendment, rather than to cases pending on such date, applied to make valid a consent warning given to the defendant in September, 1995; reversing Martin v. State, 217 Ga. App. 860, 460 S.E.2d 92 (1995). State v. Martin, 266 Ga. 244, 466 S.E.2d 216 (1996).
Offenses committed prior to April 21, 1995 are governed by the provisions of O.C.G.A. §§ 40-5-67.1 and40-6-392 as those provisions existed prior to the 1995 amendment. Park v. State, 220 Ga. App. 215, 469 S.E.2d 353 (1996).
Amendment to O.C.G.A. § 40-5-67.1, effective August 18, 1995, provides that the new implied consent warning requirement applies only as to "an offense committed on or after April 21, 1995." The applicable law in situations where the request for testing is made regarding an offense occurring before April 21, 1995, include inter alia that a suspect is not entitled to a warning which tracks the exact language of this section; the sufficiency of the warning is to be judged by the warning's content and not the warning's form; and the warning must inform the suspect that the suspect could have an additional test by a qualified person of the suspect's own choosing. State v. Golub, 220 Ga. App. 810, 470 S.E.2d 331 (1996).
Effect of 1998 amendments.
- The 1998 amendment to O.C.G.A. § 40-5-67.1 applied to an implied consent warning given to a motorist before the effective date of the amendment since the amendment does not affect the manner or degree of punishment, did not alter any substantive rights conferred on the motorist by law, and does not violate state or federal ex post facto constitutional provisions. State v. Moncrief, 234 Ga. App. 871, 508 S.E.2d 216 (1998).
Court would apply the 1998 amendment to O.C.G.A. § 40-5-67.1, even though the amendment became effective after the state filed the state's notice of appeal, since the amendment did not change any substantive rights of the defendants. State v. Nolen, 234 Ga. App. 291, 508 S.E.2d 733 (1998).
The 1998 amendment to O.C.G.A. § 40-5-67.1, providing that the implied consent notice did not have to read exactly as the statute so long as the substance remained unchanged, had retroactive effect. State v. Payne, 236 Ga. App. 338, 512 S.E.2d 292 (1999).
Amendments to O.C.G.A. § 40-5-67.1 in March 1998, providing that the implied consent warning notice did not need to be read exactly so long as the substance remained unchanged, were procedural in nature and were given retroactive effect. State v. McGraw, 237 Ga. App. 345, 514 S.E.2d 34 (1999).
Version as amended in 1998 to be applied to all cases on appellate review.
- O.C.G.A. § 40-5-67.1 is procedural, and thus, the 1998 amended version will be applied to cases on appellate review regardless of the effective date of the amendment in relation to the incident date of the case. State v. Mayo, 235 Ga. App. 107, 508 S.E.2d 475 (1998).
Miranda like warnings not required.
- Supreme Court of Georgia held that neither Georgia's right against compelled self-incrimination, Georgia's right to due process, nor Georgia's statute prohibiting compelled self-incrimination, O.C.G.A. § 24-5-506, requires law enforcement to provide Miranda warnings to persons arrested for DUI before asking a person to submit to a breath test. State v. Turnquest, 305 Ga. 758, 827 S.E.2d 865 (2019).
Police officers were not required to give the defendant a Miranda warning before asking the defendant to submit to the breath test; thus, the trial court did not err in that regard but because the trial court did not consider the deficiency in the implied consent notice as a factor in the court's totality of the circumstances analysis, the denial of the defendant's motion to suppress was reversed. Fofanah v. State, 351 Ga. App. 632, 832 S.E.2d 449 (2019).
Timing of warning.
- Implied consent warning must be given at a time as close in proximity to the instant of arrest as the circumstances of that particular case might warrant. Townsend v. State, 236 Ga. App. 530, 511 S.E.2d 587 (1999).
When the timing was warranted by the circumstances, a delay of approximately 16 minutes between the defendant's arrest and the reading of the implied consent notice did not require suppression of the defendant's refusal to submit to chemical testing. State v. Marks, 239 Ga. App. 448, 521 S.E.2d 257 (1999).
Although a police officer who detected a strong order of alcohol coming from the defendant who was standing over a motorcycle that was involved in an accident informed the defendant of the defendant's rights under Georgia's implied consent statute before the officer arrested the defendant for driving under the influence of alcohol, the appellate court found that the defendant was not free to leave at the time the implied consent warning was read to the defendant, and the court held that the reading of the notice satisfied the requirements of O.C.G.A. §§ 40-5-55,40-5-67.1(a), and40-6-392(a)(4). Oliver v. State, 268 Ga. App. 290, 601 S.E.2d 774 (2004).
Notice can be given in close proximity before arrest.
- O.C.G.A. § 40-5-67.1 implied consent notice given at the "time of arrest" under O.C.G.A. § 40-6-392 was timely when the notice preceded the formal arrest by a few seconds and the O.C.G.A. § 40-5-55(a) state-administered chemical testing, "Intoxilyzer 5000" testing, was done after the arrest. The "time of the arrest" included times as close in proximity to the instant of arrest as the circumstances of the individual case might warrant. Kahl v. State, 268 Ga. App. 879, 602 S.E.2d 888 (2004).
Right to have additional test administered.
- Language of O.C.G.A. § 40-6-392 made it clear that a person must be advised of the right to have an additional test administered by a qualified person of that person's own choice in addition to the one administered by the arresting officer. The failure to so inform invalidated the result of any test and also justified the refusal to submit to a test. Garrett v. Department of Pub. Safety, 237 Ga. 413, 228 S.E.2d 812 (1976) (decided under former Code 1933, § 68B-306).
Failure of an arresting officer to advise the suspect of the suspect's rights to a chemical test or tests according to former Code 1933, § 68A-902.1 (see now O.C.G.A. § 40-6-392(a)(3)) rendered the results of the test inadmissible in later proceedings. Rogers v. State, 163 Ga. App. 641, 295 S.E.2d 140 (1982), overruled on other grounds by Bailey v. State, 2016 Ga. App. LEXIS 433 (Ga. Ct. App. 2016) (decided under former Code 1933, §§ 68A-902.1 and 68B-306).
State may not use the accused's refusal to submit to the state-administered test to suspend the accused's driver's license since the accused was not informed, at the time of arrest, or at a time in proximity to the accused's arrest if the circumstances of the case warrant a later time, of the accused's right to an independent chemical analysis to determine blood alcohol or drug contents. Perano v. State, 250 Ga. 704, 300 S.E.2d 668 (1983) (decided under former Code 1933, § 68A-902.1)
When it was uncontroverted in three consolidated cases that the arresting officer did not inform the defendant of the defendant's right, after submission to the state-administered test, to have an independent test administered by a qualified person of the defendant's own choosing, the trial court properly granted the defendant-appellees' motions to exclude the results of the state-administered tests or the refusal to submit to testing. State v. Hassett, 216 Ga. App. 114, 453 S.E.2d 508 (1995).
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).
Motorist was not denied the right to an independent blood alcohol test by qualified personnel of the motorist's own choosing since the evidence showed that, after the defendant requested an additional test, the defendant was taken to the nearest hospital where the defendant's blood was drawn and tested, and the defendant neither objected to being there nor requested a specific doctor. Lambropoulous v. State, 234 Ga. App. 625, 507 S.E.2d 225 (1998).
There is no requirement that a suspect bond out before being entitled to an independent test, but merely that the suspect first agree to take a state-administered test. State v. Terry, 236 Ga. App. 248, 511 S.E.2d 608 (1999).
Notice is silent as to when an independent test will be administered. State v. Terry, 236 Ga. App. 248, 511 S.E.2d 608 (1999).
If a suspect agrees to the state-administered test, the police must make a reasonable effort to accommodate the accused who seeks an independent test. State v. Terry, 236 Ga. App. 248, 511 S.E.2d 608 (1999).
There was no error in denying the defendant's motion to suppress because the law did not require that the officer making the DUI arrest ask the accused if the accused wished to have an independent chemical test after the officer read the implied consent notice informing the accused of that option under O.C.G.A. § 40-5-67.1(b)(2). McArthur v. State, 276 Ga. App. 872, 625 S.E.2d 68 (2005).
No evidence of request for additional test.
- After a police officer properly advised the defendant of the defendant's rights under the implied consent notice, and since there was no evidence in the record establishing that the defendant ever requested to be taken to the hospital to exercise the defendant's right to an independent breath test, the trial court erred in making a factual finding that such a request was made. State v. Gillette, 236 Ga. App. 571, 512 S.E.2d 399 (1999).
Officer elects test.
- As long as a defendant's right to an independent chemical test was clear, an officer may have obtained consent for more than one chemical test and then elected which consented-to "test or tests" were to have been administered; thus, an order suppressing the defendant's breath test results was reversed. State v. Brantley, 263 Ga. App. 209, 587 S.E.2d 383 (2003).
Implied consent warning was not rendered defective or misleading by the arresting officer's failure to initiate administrative license suspension proceedings immediately after the defendant's arrest. Singleterry v. State, 227 Ga. App. 155, 489 S.E.2d 42 (1997).
Unimportant misstatements made in giving the implied consent warning did not require suppression of the test results since the meaning of the implied consent warning did not change and the motorist was unharmed. Harrison v. State, 235 Ga. App. 78, 508 S.E.2d 459 (1998).
Officer's mistakenly informing the defendant that the defendant's driver's license was subject to suspension if the defendant's alcohol concentration was .01 grams or more, instead of the legal limit of .10 grams, did not change the substance of the notice in any way harmful to the defendant. Maurer v. State, 240 Ga. App. 145, 525 S.E.2d 104 (1999).
Even though an officer read the implied consent warning incorrectly due to a slip of the tongue, the mistake was harmless and did not render the blood test results inadmissible. Yarbrough v. State, 241 Ga. App. 777, 527 S.E.2d 628 (2000).
Although the police officer who read the defendant the implied consent warning of O.C.G.A. § 40-5-67.1(b)(2) concluded the warning by asking if the defendant would submit to breath and blood tests, the language of § 40-5-67.1(a) indicated that the officer's request for consent to conduct both kinds of tests did not mean that both types of tests had to be given; the wording of the officer's request and the officer's ultimate decision to conduct only breath tests could not have misled the defendant into believing that the defendant could not request an independent blood test. Mueller v. State, 257 Ga. App. 830, 572 S.E.2d 627 (2002).
Trial court's judgment denying the defendant's motion to suppress was reversed and the case remanded for the court to further consider the totality of the circumstances surrounding the defendant's breath test as, although the trial court did consider some of the circumstances surrounding the defendant's consent, the court did not consider whether the officer's misleading statement affected the defendant's decision to take the breath test, having already determined that specific issues as to the defendant's consent were moot. Holland v. State, 347 Ga. App. 601, 820 S.E.2d 442 (2018).
Reference to "test" or "tests" in notice.
- Arresting officer's reading of the implied consent warning did not change the substance of the notice, and thus, did not require suppression of the defendant's refusal to submit to chemical testing since the officer informed the defendant that the defendant was entitled to an additional chemical "test" rather than "tests" as stated in the statute. Rojas v. State, 235 Ga. App. 524, 509 S.E.2d 72 (1998).
When the officer was requesting consent for only one test, correcting the grammar of the sentence by changing "test" to "tests" is not a substantive change which alters the meaning of the question, but makes the critical sentence in the warning, which defines the test for which consent is sought, more understandable. State v. Sneddon, 235 Ga. App. 739, 510 S.E.2d 566 (1998).
When a police officer changed the word "tests" to "test" in the officer's implied consent warnings to the defendant because the officer only asked the defendant to submit to one type of state administered test, the officer's warnings satisfied the statutory requirements. State v. Black, 236 Ga. App. 56, 510 S.E.2d 903 (1999).
When the defendant was informed that the law required the defendant to submit to a state administered test, that was the significant point in that portion of the implied consent warning, and the substitution of the word "test" for "tests" did not render the results of the breath test inadmissible. Sheridan v. State, 236 Ga. App. 350, 511 S.E.2d 908 (1999).
Substitution of "test" for "tests" and "substance" for "substances" did not alter the substance of the statutory implied consent notice, and suppression was therefore not required. State v. Payne, 236 Ga. App. 338, 512 S.E.2d 292 (1999).
Police officer's replacement of the word "test" for "tests," coupled with the officer's grammatical errors in the giving of the implied consent warning notice, did not affect the substance of the notice. State v. McGraw, 237 Ga. App. 345, 514 S.E.2d 34 (1999).
Even if it was error for a police officer to have informed the defendant that the defendant was entitled to an "additional chemical test," rather than "tests," any such error was immaterial since the defendant rejected any additional test at all. State v. McGraw, 237 Ga. App. 345, 514 S.E.2d 34 (1999).
Requirement that the notice "shall be read in its entirety" means that police officers are to read the warning all the way through, instead of reading, for example, only half of the notice; however, the legislature allowed for human error in the reading of the warning, such as the omission of a word or two, as long as the notice's meaning is not affected. State v. Garnett, 241 Ga. App. 315, 527 S.E.2d 21 (1999).
Substance of notice unchanged by omission of word.
- Arresting officer's omission of the word "and" in the next to last sentence of the statutory implied consent warning did not change the substance of the required statutory notice and therefore complied with the 1998 amended version of O.C.G.A. § 40-5-67.1. State v. Nolen, 234 Ga. App. 291, 508 S.E.2d 733 (1998).
Police officer's reading of the implied consent notice was sufficient, and the defendant's blood test results should not have been suppressed in the defendant's DUI prosecution for the officer's failure to use the exact statutory language after the officer omitted two words from the implied consent notice, but the defendant was not misled. State v. Levins, 235 Ga. App. 739, 507 S.E.2d 246 (1998).
Warning of suspension not misleading and coercive.
- Implied consent notice prescribed by O.C.G.A. § 40-5-67.1(b)(2) and read by an officer to a driver was not misleading and did not overstate the penalty for refusing to take the state-administered test; a one-year suspension was a true and legitimate consequence of refusal to submit, pursuant to § 40-5-67.1(d), despite the availability of scenarios in which suspension could be rescinded in less than one year. State v. Oyeniyi, 335 Ga. App. 575, 782 S.E.2d 476 (2016).
Privilege against self- incrimination.
- Implied consent warnings administered to motorists suspected of driving under the influence need not inform the motorists of their privilege against self-incrimination. Heller v. State, 234 Ga. App. 630, 507 S.E.2d 518 (1998).
Warning in substantial compliance with O.C.G.A. § 40-5-67.1 was sufficient. State v. McCabe, 239 Ga. App. 297, 519 S.E.2d 760 (1999).
Trial court erred in granting the defendant's motion to suppress the results of a state-administered chemical blood test, as the record showed that the defendant was read the implied consent notice, was not threatened in any way, did not show physical resistance, and told both the officer and the EMS worker that the defendant consented to have blood taken. State v. Clay, 339 Ga. App. 473, 793 S.E.2d 636 (2016).
Failure to read specific language of implied consent warning.
- An officer's possible substitution of "test" for "tests" in reading the last sentence of the prescribed notice amounted to a verbatim reading since the officer was asking for consent for only one test. State v. Hopkins, 232 Ga. App. 705, 503 S.E.2d 590 (1998).
Added words to implied consent notice.
- Trial court erred when the court granted the defendant's motion to suppress evidence based on the officer adding words to the implied consent notice because the added words did not alter the substance of the notice nor affect the defendant's consent to testing. State v. Fedrick, 329 Ga. App. 75, 763 S.E.2d 739 (2014).
Verbatim reading of the implied consent notice is not required. Bass v. State, 238 Ga. App. 503, 519 S.E.2d 294 (1999), overruled on other grounds, Jones v. State, 272 Ga. 900, 537 S.E.2d 80 (2000).
Must read language exactly.
- In advising a motorist of the motorist's implied consent rights, a police officer was required to read the exact language of subsection (b) of O.C.G.A. § 40-5-67.1. State v. Fielding, 229 Ga. App. 675, 494 S.E.2d 561 (1997).
Notice insufficient when proof of what was read to defendant inadequate.
- Defendant's blood test results should have been suppressed because, although a nurse and an officer testified that the officer read the implied consent warning to the defendant prior to the blood draw, the actual card from which the officer read was not admitted into evidence, the state did not produce evidence of what was read to the defendant, and the state thus failed to prove that the state complied with the O.C.G.A. § 40-5-67.1(b) implied consent notice requirements; in the absence of the blood test results, there was no competent evidence that the defendant had an alcohol concentration of .08 grams or more within three hours after driving as charged in the accusation. Thus, the conviction for DUI per se was not supported by sufficient evidence. Epps v. State, 298 Ga. App. 607, 680 S.E.2d 636 (2009).
Omission of information resulted in insufficient notice.
- Court of appeals erred in reversing the trial court's grant of the defendant's motion to suppress evidence that the defendant refused to submit to chemical testing because the officer failed to convey the entire substance of the implied consent notice required by O.C.G.A. § 40-5-67.1(b)(2), omitting information about the consequence of refusal, rendering the notice insufficient to allow the defendant to make an informed decision about whether to submit to testing. Sauls v. State, 293 Ga. 165, 744 S.E.2d 735 (2013).
Advisement of rights momentarily interrupted by another call.
- Results of the defendant's intoximeter test were admissible because the arresting officer advised the defendant of the defendant's rights under the implied consent law as close in proximity to the instant of arrest as the circumstances warranted when after the officer stopped the defendant and put the defendant in the patrol car, the officer got a call and went after another vehicle, picked up the driver and then took both of the drivers to the police station and read the defendant the implied consent rights while they were in the patrol car. Fore v. State, 180 Ga. App. 196, 348 S.E.2d 579 (1986).
Warning to driver suspected of intoxication.
- Driver suspected of intoxication is not entitled to warning which tracks exact language of O.C.G.A. § 40-5-67.1. Ivie v. State, 151 Ga. App. 496, 260 S.E.2d 543 (1979); Pryor v. State, 182 Ga. App. 79, 354 S.E.2d 690 (1987).
Implied consent warnings that tracked the language of O.C.G.A. § 40-5-67.1 were not deceptive or misleading on the basis that the officer did not subsequently initiate an administrative license suspension. Morrissette v. State, 229 Ga. App. 420, 494 S.E.2d 8 (1997).
When an officer initially gave the implied consent warning correctly, the officer was under no duty to give further warnings or instructions, and the officer's subsequent statement to the defendant, i.e., that if the defendant did not submit to a breath test, the officer would suspend the defendant's driver's license was not false or misleading. State v. Kirbabas, 232 Ga. App. 474, 502 S.E.2d 314 (1998), overruled on other grounds by State v. Turnquest, 305 Ga. 758, 827 S.E.2d 865 (2019).
Implied consent notice given before arrest.
- Required timing of the implied consent notice for a person who is involved in a traffic incident resulting in serious injuries or a fatality, and who is not arrested at that time for a violation of O.C.G.A. § 40-6-391 is: (a) law enforcement officers must administer chemical tests for alcohol and drugs as soon as possible; and (b) the implied consent notice must be given at the time such test is requested, which may or may not be at the time of actual testing. Joiner v. State, 239 Ga. App. 843, 522 S.E.2d 25 (1999).
Arrest not required before reading of implied consent rights when defendant received serious injuries in accident.
- Because a defendant was involved in an accident which resulted in serious injuries and the investigating officer had probable cause to believe that the defendant was driving under the influence, the officer was not required to arrest the defendant before the reading of implied consent; however, if a different accident did not involve serious injuries, the suspect needed to be under arrest before the implied consent rights were read. Hough v. State, 279 Ga. 711, 620 S.E.2d 380 (2005).
25 minute delay in reading implies consent notice acceptable.
- Officer's testimony that: (1) the officer read the Georgia implied consent law from 1997; (2) the officer read the notice for suspects over 21; and (3) the officers read the notice twice because the defendant appeared not to understand was sufficient to prove compliance with the implied consent notice requirements. Cullingham v. State, 242 Ga. App. 499, 529 S.E.2d 199 (2000).
Trial court did not err in denying the defendant's motion to suppress as an officer's failure to read the implied consent notice in a timely manner did not warrant suppression given that the 25-minute delay was based on the officer's need to ensure safety by searching and interviewing the defendant's intoxicated passenger, investigate and secure the scene, and inventory the defendant's car before a tow truck arrived. Dunbar v. State, 283 Ga. App. 872, 643 S.E.2d 292 (2007).
Results of test suppressed when information misleading.
- When the trial court found that the information given the defendant regarding the defendant's right to an independent test was substantially misleading, inaccurate, extraneous, and relevant to the defendant's decision whether to agree to the state-administered test, it was not error for the court to grant the defendant's motion to suppress. State v. Terry, 236 Ga. App. 248, 511 S.E.2d 608 (1999).
Substantial evidence supported the trial court's decision to grant the defendant's motion to suppress evidence that was derived as a result of the defendant's submission to a breath test during a traffic stop after the defendant's consent to take the test was based, at least in part, on misleading information from the police officer that the defendant's out-of-state license could be suspended if the defendant refused to submit to the test; the officer had no authority to implement such a penalty for refusal. State v. Peirce, 257 Ga. App. 623, 571 S.E.2d 826 (2002).
Trial court erred in denying the defendant's motion to suppress because the defendant's final consent to a blood test was given only after the trooper misinformed the defendant of the consequences of refusing to take a blood test and the defendant appeared to believe that the defendant's Washington driver's license would be revoked if the defendant refused. Hernandez v. State, 348 Ga. App. 569, 824 S.E.2d 67 (2019).
Error not to have supressed test results.
- Trial court erred when the court did not suppress the defendant's breath test because the implied consent warning read to the defendant by the arresting officer was misleading, inaccurate, and coercive; however, there was sufficient evidence that the defendant was a less safe driver. Kitchens v. State, 258 Ga. App. 411, 574 S.E.2d 451 (2002).
Error in admitting chemical test results harmless in light of other evidence.
- While the appeals court agreed that the trial court erred in denying the defendant's motion to suppress the results of the chemical test of the defendant's blood, the error was harmless as other evidence presented by the state, specifically the defendant's admission to being intoxicated and the testimony of other witnesses describing their observations, proved the defendant's intoxication. Harrelson v. State, 287 Ga. App. 664, 653 S.E.2d 98 (2007).
"Totality of circumstances" test inapplicable.
- Because the choice afforded a suspect under the implied consent statute does not rise to the level of constitutional self-incrimination, it is improper for a court to apply the "totality of circumstances" test. The issues to be determined are simply whether the officer told the suspect of the suspect's implied consent rights in a timely fashion and whether the suspect revoked the implied consent. State v. Highsmith, 190 Ga. App. 838, 380 S.E.2d 272 (1989).
Warning to holder of commercial license driving private passenger car.
- Because the defendant was over 18 and driving a private passenger car when arrested, it was appropriate to give the defendant the implied consent warning for suspects over 18, even though the defendant held a commercial driver's license. Meyer v. State, 224 Ga. App. 183, 480 S.E.2d 234 (1997).
Warning to commercial driver.
- Implied consent warning given to a commercial driver stating: "If you refuse this testing, you will be disqualified from operating a commercial motor vehicle for a minimum period of one year" was a correct statement of the consequences for a refusal to submit to alcohol testing. Roberson v. State, 228 Ga. App. 416, 491 S.E.2d 864 (1997).
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).
Trial court erred in concluding that the difference between the implied consent warning for suspects over age 21 and the warning for commercial drivers was within the range of substantial compliance and did not render the warning insufficiently accurate because overstating the legal limit might have led the defendant to subject to testing. Gelzer v. State, 347 Ga. App. 219, 818 S.E.2d 677 (2018).
Due process.
- Administrative decision disqualifying a driver from driving a commercial motor vehicle for life based on the refusal to submit to state- administered chemical testing and a prior conviction for driving under the influence was upheld as the arresting officer informed the driver that the driver could lose that driver's license to drive upon refusing to submit to chemical testing, and the requirements of due process did not require the arresting officer to inform the driver of all the consequences of refusing to submit to chemical testing. Moreover, the driver requested and received a hearing under O.C.G.A. § 40-5-67.1(g)(1). Chancellor v. Dozier, 283 Ga. 259, 658 S.E.2d 592 (2008).
There was no unlawful coercion after the officer merely informed the arrestee of the permissible range of sanctions that the state is authorized to impose. The fact that the driver's license was not ultimately suspended did not mean that the officer was not informed of the true and legitimate consequences of the officer's refusal or performance on the test. Gutierrez v. State, 228 Ga. App. 458, 491 S.E.2d 898 (1997).
Defendant was properly advised.
- In a driving under the influence case, the state met the state's burden of showing that the defendant had been properly advised of an implied consent notice. Although a card an officer read into evidence was of a later date than the card the officer had read to the defendant, the officer testified that the language of the cards was the same, and the language accurately informed the defendant of the applicable implied consent notice. State v. Cato, 289 Ga. App. 702, 658 S.E.2d 124 (2008).
Because a police officer's actions, including reading the defendant the implied consent warnings in O.C.G.A. § 40-5-67.1(g)(2)(B) multiple times, were reasonable and the procedure utilized was fair, the results of a toxicology report, indicating that 0.24 milligrams per liter of benzoylecgonine, a metabolite of cocaine, was present in the defendant's blood, was sufficient for the jury to find the defendant guilty of violating O.C.G.A. § 40-6-391(a)(6). Page v. State, 296 Ga. App. 431, 674 S.E.2d 654 (2009).
Trial court erred in granting a defendant's motion to suppress evidence of the defendant's refusal to submit to chemical testing on the basis that the arresting officer failed to inform the defendant, pursuant to O.C.G.A. § 40-5-67.1(b)(2), that the defendant's refusal to submit could be used against the defendant at trial. The officer informed the defendant that failure to take the test would result in loss of driving privileges for one year; thus the officer made it clear that refusing the test was not a safe harbor, free of adverse consequences. State v. Sauls, 315 Ga. App. 98, 728 S.E.2d 241 (2012).
Defendant was not entitled to have the results of a breath test excluded because the officer's failure to designate a specific state-administered test for which consent was being requested did not change the meaning of the notice required under O.C.G.A. § 40-5-67.1; the defendant was under notice that state-administered chemical tests would be of the defendant's blood, breath, urine, or other bodily substances. Nagata v. State, 319 Ga. App. 513, 736 S.E.2d 474 (2013).
Since the defendant did not assert that the defendant was under 21 or occupied a commercial vehicle, the notice of implied consent for those over 21 was the only appropriate notice for the officer to have read to the defendant, who held a license from North Carolina. State v. Barnard, 321 Ga. App. 20, 740 S.E.2d 837 (2013).
Trial court did not err in excluding the breath test results because the arresting officer read the appropriate implied consent warning for persons over 21 as there was no evidence that the defendant had an out-of-state driver's license, the defendant did not assert that the defendant was under 21, or occupied a commercial motor vehicle. State v. Gaggini, 321 Ga. App. 31, 740 S.E.2d 845 (2013).
Consent to test was found voluntary under all the circumstances.
- Defendant's breath test was admissible because the defendant consented after being read an implied consent warning as required by O.C.G.A. § 40-5-67.1(b)(2), and there was no evidence that the officers used fear, intimidation, threat, or lengthy detention to obtain the defendant's consent, although the defendant was arrested and in handcuffs when the notice was read. Kendrick v. State, 335 Ga. App. 766, 782 S.E.2d 842 (2016).
Driver Incapable of Understanding Rights
Advisement, not understanding, is all that is required.
- All drivers are entitled only to be advised of their rights under the implied consent law, that is, to have the implied consent notice read to the drivers, and the law does not require the arresting officer to ensure that the driver understands the implied consent notice. Furcal-Peguero v. State, 255 Ga. App. 729, 566 S.E.2d 320 (2002), cert. denied, 537 U.S. 1233, 123 S. Ct. 1356, 155 L. Ed. 2d 197 (2003).
When an officer read a defendant an implied consent notice under O.C.G.A. § 40-5-67.1(b) accurately and timely, the notice was valid irrespective of the defendant's claimed inability to understand the notice; thus, even if the defendant's later refusal to provide a breath sample resulted from a failure to comprehend the consequences of the defendant's conduct, the refusal was admissible against the defendant. State v. Stewart, 286 Ga. App. 542, 649 S.E.2d 525 (2007), cert. denied, 2008 Ga. LEXIS 120 (Ga. 2008).
Results of blood test admissible though defendant unconscious.
- When the evidence shows that advice as to independent tests available cannot be given because of unconsciousness, it was the intent of the General Assembly that, under the exigent circumstances, the officer lawfully can extract a blood specimen under the aegis of protection of evidence. Smith v. State, 143 Ga. App. 347, 238 S.E.2d 698 (1977) (decided under former Code 1933, § 68A-902.1)
For blood drawn from an unconscious driver to be used for a blood alcohol test it is not necessary that the state show that the driver was informed, upon regaining consciousness of the right to refuse such testing. Long v. State, 176 Ga. App. 89, 335 S.E.2d 587 (1985).
Even if the defendant was unconscious or semi-conscious, and thereby incapable of refusing to consent to a blood test, the results of the test were nevertheless admissible. Holmes v. State, 180 Ga. App. 787, 350 S.E.2d 497 (1986); Curtis v. State, 182 Ga. App. 388, 355 S.E.2d 741 (1987).
Subsequent administration of test required reading notice again.
- Because a defendant, who was charged with driving under the influence in violation of O.C.G.A. § 40-6-391, was confused after a police officer read the defendant the implied consent warning, and the defendant failed to respond to the officer's request to administer the chemical breath test, such a response was tantamount to a refusal, and accordingly, when the defendant was then taken to a detention center it was error to administer the test without the defendant being asked to consent again or without reading the implied consent warnings pursuant to O.C.G.A. § 40-5-67.1, and suppression of the results was required. State v. Adams, 270 Ga. App. 878, 609 S.E.2d 378 (2004).
Timing of warning.
- When there was a perceived threat of a fire or explosion at the accident scene and an apparent need for prompt medical transportation of the defendant for medical treatment, there was a fair risk that the defendant would not have been able to make an intelligent choice concerning the state's request for a blood test, and the implied consent warning given at the hospital was timely given. Townsend v. State, 236 Ga. App. 530, 511 S.E.2d 587 (1999).
Spanish speaking drivers.
- Results of state-administered blood alcohol test given to a driver suspected of driving under the influence who could not speak English and who was only advised of the driver's rights under the implied consent statute in English were admissible because the driver consented to chemical intoxication tests by driving on the state's roads, because the officer advised the defendant of the defendant's implied consent rights, albeit in English, and because the defendant did not withdraw consent. Furthermore, admissibility of a state-administered test of the blood alcohol level of a person suspected of driving under the influence is not conditioned on the state's showing of a knowing and intelligent waiver of the "right" to an independent test. Furcal-Peguero v. State, 255 Ga. App. 729, 566 S.E.2d 320 (2002), cert. denied, 537 U.S. 1233, 123 S. Ct. 1356, 155 L. Ed. 2d 197 (2003).
Refusal by Driver to Submit to Test
Constitutionality.
- Georgia Supreme Court concluded that Ga. Const. 1983, Art. I, Sec. I, Para. XVI precluded admission of evidence that the suspect refused to consent to a breath test; thus, O.C.G.A. §§ 40-5-67.1(b) and40-6-392(d) were unconstitutional to the extent that the statutes allow the defendant's refusal to submit to a breath test to be admitted into evidence at a criminal trial. Elliott v. State, 305 Ga. 179, 824 S.E.2d 265 (2019).
License suspended only when person refuses test.
- Only when a person has refused to submit to the chemical test upon the request of the law enforcement officer shall that person's license be suspended under the law. Hardison v. Chastain, 151 Ga. App. 678, 261 S.E.2d 425 (1979) (decided under former Code 1933, § 68A-902.1)
Arresting officer cannot take words of others as to refusal.
- Simple question by the arresting officer as to whether or not the defendant was refusing the chemical blood test would have settled this issue, but the law enforcement officer did not ask the question, but took the words of others that the defendant had refused to take the test, and, therefore, the defendant's license could not be suspended. Hardison v. Chastain, 151 Ga. App. 678, 261 S.E.2d 425 (1979) (decided under former Code 1933, § 68A-902.1)
Refusal to submit to test based on "bad advice."
- An officer is not required to ensure that a suspect be provided an environment free from another's "bad advice" when deciding whether to cooperate with a properly administered implied consent notice, especially when that advice does not enure to the state's benefit and especially when the suspect is equally free to ignore such advice. State v. Marks, 239 Ga. App. 448, 521 S.E.2d 257 (1999).
Form 1205.
- O.C.G.A. § 40-5-67.1 expressly limits the scope of a hearing to challenge a license suspension to six enumerated issues including the lawfulness of the arrest, whether the motorist was informed of the implied consent rights, whether the motorist refused testing, the results of any test given, whether the testing was properly administered, and whether the arresting officer completed the DPS Form 1205 and submitted the Form to the department has no bearing on these issues, and nothing in the statute requires that the department tender the Form into evidence. Miles v. Ahearn, 243 Ga. App. 741, 534 S.E.2d 175 (2000).
If the arresting officer testifies in person as to the events of the arrest, the DPS Form 1205 clearly is not necessary to the resolution of the issues enumerated in O.C.G.A. § 40-5-67.1 and there is no need for an initial showing that the license was suspended because the fact of the suspension is not at issue. Miles v. Ahearn, 243 Ga. App. 741, 534 S.E.2d 175 (2000).
Pretense of complying with test.
- That the defendant made a pretense of complying with an intoximeter test, but in fact failed to inflate the balloon, authorizes a finding that the defendant refused to submit to the test. The implied consent law requires a meaningful submission to the test. Howard v. Cofer, 150 Ga. App. 579, 258 S.E.2d 195 (1979) (decided under former Code 1933, § 68A-902.1)
Not completing test within judgment of test operator.
- When Ga. L. 1968, p. 448 fails to set out what constitutes a complete breath alcohol test, a showing that the driver of the automobile did not complete the test within the judgment of the operator is not evidence of a "refusal to submit" within the contemplation of the law. Department of Pub. Safety v. Orr, 122 Ga. App. 439, 177 S.E.2d 164 (1970) (decided under Ga. L. 1968, p. 448).
Defendant's failure to recall not inconsistent with state's showing of refusal.
- Defendant's failure to recall the circumstances following a collision did not contradict the state's prima facie showing that the defendant was in a communicative condition - not dead, unconscious, or otherwise incapable of refusing the test - when informed of the defendant's rights and thereafter refused chemical testing of the defendant's blood. Duncan v. State, 183 Ga. App. 368, 358 S.E.2d 910 (1987).
Evidence of refusal admissible.
- Defendant's refusal to take the chemical test was admissible in evidence notwithstanding the fact that the arresting officer mistakenly told the defendant that the defendant's license had already been revoked, since the officer's mistake concerning the license was an honest one, which had nothing to do with the defendant's options under the implied consent statute. Sorrow v. State, 178 Ga. App. 83, 342 S.E.2d 20 (1986).
Person is required to submit to a test to determine if the person is under the influence of alcohol or other drugs; however, a driver has the right to refuse to take a state administered test, subject to the mandate that exercise of the right of refusal shall be admissible in the driver's criminal trial. State v. Leviner, 213 Ga. App. 99, 443 S.E.2d 688 (1994).
In the defendant's DUI trial, O.C.G.A. § 40-6-391(a)(1), because a breath test was permitted as a search incident to the defendant's DUI arrest, the defendant's refusal to take the breath test was not the exercise of the constitutional right against unreasonable searches and seizures, and evidence of the defendant's refusal was properly admitted under O.C.G.A. § 40-5-67.1(b). Cherry v. State, 345 Ga. App. 409, 813 S.E.2d 408 (2018), cert. denied, No. S18C1104, 2018 Ga. LEXIS 720 (Ga. 2018).
Silence as refusal.
- Defendant's refusal to permit a chemical analysis to be made of the defendant's blood, breath, urine, or other bodily substance at the time of the defendant's arrest is admissible in evidence against the defendant, and there is no reason that silence in the face of a request to take such a test should be treated any differently than a refusal. Miles v. State, 236 Ga. App. 632, 513 S.E.2d 39 (1999).
When an officer testified that the officer read to the defendant the requisite "implied consent" notice set forth in O.C.G.A. § 40-5-67.1(b), the defendant's refusal to submit to the test was admissible as evidence against the defendant, and this does not rise to the level of constitutional self-incrimination. Ellison v. State, 242 Ga. App. 636, 530 S.E.2d 524 (2000).
After a police officer read the defendant the correct informed consent notice pursuant to O.C.G.A. § 40-5-67.1(b)(2) and the defendant's questions regarding the defendant's submission or refusal to submit to the chemical testing were answered accurately, the information was not false or misleading, and the consequences of the defendant's submission or refusal to submit to the test were provided; thus, there was no substantial basis for a determination that the defendant was incapable of making an informed decision, and the trial court erred in excluding the defendant's refusal to submit to the testing in that instance. State v. Chun, 265 Ga. App. 530, 594 S.E.2d 732 (2004).
Defendant's refusal to submit to chemical testing was admissible because, after the defendant refused, the officers improperly obtained a search warrant and forcibly conducted the testing; the remedy for the officers' misdeed was exclusion of the test results, not exclusion of evidence of the defendant's refusal to submit to testing. Harris v. State, 272 Ga. App. 366, 612 S.E.2d 557 (2005).
Defendant's refusal to submit to chemical testing was admissible even though the state introduced evidence of the blood alcohol level from the defendant's medical records; the test results and the refusal to submit were admissible for different reasons and the admissibility of one did not preclude the admissibility of the other. Harris v. State, 272 Ga. App. 366, 612 S.E.2d 557 (2005).
Defendant's conviction for driving under the influence to the extent that the defendant was a less safe driver under O.C.G.A. § 40-6-391(a)(1) was affirmed as the conviction was supported by sufficient evidence including: (1) the defendant's admissions that the defendant had been driving a motorcycle and that the defendant had consumed "beer, tequila, and lots of alcohol" earlier in the day; (2) the defendant's refusal to submit to state-administered chemical testing; and (3) a deputy's opinion that the defendant was under the influence of alcohol to the extent that the defendant was a less safe driver. Kimbrell v. State, 280 Ga. App. 867, 635 S.E.2d 237 (2006).
Trial court erred in suppressing the defendant's refusal to submit to a state-administered chemical breath test as the implied consent notice given by a sheriff's deputy was substantially accurate and timely given, and irrespective of whether the refusal resulted from the defendant's confusion, it nevertheless remained a refusal. State v. Brookbank, 283 Ga. App. 814, 642 S.E.2d 885 (2007).
Defendant's refusal to submit to a state-administered chemical test of blood, breath, urine, or other bodily substance was admissible as evidence of the defendant's intoxication. Stewart v. State, 288 Ga. App. 735, 655 S.E.2d 328 (2007).
Evidence of refusal.
- State was not collaterally estopped from introducing evidence of the defendant's refusal to submit to a breath test when the state was not given the opportunity to fully litigate the issue at an administrative hearing regarding the defendant's driver's license suspension. Swain v. State, 251 Ga. App. 110, 552 S.E.2d 880 (2001).
Effect of refusal.
- By refusing the state-administered breath test after being advised under O.C.G.A. § 40-5-67.1, the defendant forfeited any right to an independent blood test. Renkiewicz v. State, 283 Ga. App. 692, 642 S.E.2d 384 (2007).
Conduct constituting refusal.
- When a defendant went to a breathalyzer machine but plugged the hole with the defendant's tongue and declined to blow into the tube, the defendant's conduct could be viewed as a refusal to take the test; there was no evidence that the defendant suffered from a physical or medical condition that would prevent the defendant from providing an adequate breath sample. State v. Stewart, 286 Ga. App. 542, 649 S.E.2d 525 (2007), cert. denied, 2008 Ga. LEXIS 120 (Ga. 2008).
Consent obtained by misleading information.
- In a prosecution for driving under the influence, when the defendant was deprived by the totality of the inaccurate, misleading, and/or inapplicable information given to the defendant by the arresting officer of making an informed choice under the implied consent statute, the defendant's refusal to consent to a urine test was rendered inadmissible. State v. Leviner, 213 Ga. App. 99, 443 S.E.2d 688 (1994).
Consent obtained by coercion.
- Defendant's conviction was properly reversed as the police improperly threatened to obtain a search warrant to obtain blood and urine for testing through a catheter after the defendant invoked the right under the implied consent law to refuse the testing. State v. Collier, 279 Ga. 316, 612 S.E.2d 281 (2005).
Refusal of nonresident driver.
- Proper implied consent warning as enacted by the legislature was read to the defendant without error, notwithstanding the defendant's contention that the defendant refused to submit to the requested blood test because the defendant did not believe there would be any penalties in the defendant's home state of South Carolina, i.e., that only the defendant's driving privileges in Georgia would be affected. Wofford v. State, 234 Ga. App. 316, 506 S.E.2d 656 (1998), overruled on other grounds by State v. Lane, 2020 Ga. LEXIS 98 (Ga. 2020).
Compelled testing not permitted.
- Police do not have the authority to seek a search warrant to compel a defendant to submit blood and urine samples for drug testing after a defendant invoked the right under the implied consent law to refuse the testing. State v. Collier, 279 Ga. 316, 612 S.E.2d 281 (2005).
Search warrant obtained after refusal.
- Search warrant used to take the defendant's blood after the defendant refused testing was valid under the implied consent statute because the state was permitted to apply for a warrant to perform the test and the officer provided sufficient cause to obtain the warrant for the defendant's blood. McAllister v. State, 325 Ga. App. 583, 754 S.E.2d 376 (2014).
Breath test admissible despite initial refusal.
- At the time of a defendant's arrest for DUI, the defendant refused to submit to a breath test; after the officer gave the defendant the chance to rescind this refusal, the defendant agreed to take the test in the absence of any threats or inducements. As the officer did not act unreasonably in attempting to induce the defendant to rescind the initial refusal, the test results were admissible. State v. Quezada, 295 Ga. App. 522, 672 S.E.2d 497 (2009).
Jury properly instructed that jury could infer that defendant would have tested positive.
- Trial judge was authorized to instruct a jury in a defendant's trial for driving under the influence that the jury could infer from the defendant's refusal to submit to state-administered chemical tests of the defendant's blood and breath that the defendant would have tested positively for alcohol. Blankenship v. State, 301 Ga. App. 602, 688 S.E.2d 395 (2009).
Designation of Test by Arresting Officer
Arresting officer designates particular chemical test.
- Under a theory of implied consent, O.C.G.A. § 40-5-67.1 effectively mandates that a person charged with driving under the influence submit to whichever recognized chemical test (blood, breath, urine, etc.) is designated by the arresting officer. Steed v. City of Atlanta, 172 Ga. App. 839, 325 S.E.2d 165 (1984).
O.C.G.A. § 40-5-67.1, read in pari materia with O.C.G.A. §§ 40-5-55 and40-6-392, authorizes a law enforcement officer to designate the appropriate chemical test to be administered - breath, blood, urine, or other bodily substance - for the detection of the source of impairment as suspected by the officer. Jordan v. State, 223 Ga. App. 176, 477 S.E.2d 583 (1996).
Blood or breath testing not prerequisite to requirement for urine sample.
- O.C.G.A. § 40-5-67.1, construed with O.C.G.A. §§ 40-5-55 and40-6-392, does not require blood or breath testing before an officer may require a suspect to provide a urine sample for analysis for the presence of alcohol, drugs, or marijuana. State v. Sumlin, 224 Ga. App. 205, 480 S.E.2d 260 (1997).
Results of test not designated not inadmissible.
- When an arresting officer requested a blood test on the citation but a breath test was administered instead by another officer upon oral instructions from a "paddy wagon" driver, the breath test was not inadmissible on the grounds that the test violated the statutory directive that "the requesting law enforcement officer shall designate which of the aforesaid test shall be administered." Steed v. City of Atlanta, 172 Ga. App. 839, 325 S.E.2d 165 (1984) (decided under O.C.G.A. § 40-5-55).
Court did not err in denying defendant's motion to exclude state- administered test results.
- Trial court did not err in refusing to suppress the results of a state-administered blood test because the deputy read the defendant the implied consent warning and asked whether the defendant would submit to a blood test, to which the defendant responded in the negative and asked for a breath test, which was not a request for an independent test, but rather an attempt to designate which test the defendant wanted the state to administer. Sigerfoos v. State, 350 Ga. App. 450, 829 S.E.2d 666 (2019).
Officer's selection of another test after being dissatisfied with original results.
- Once the arresting officer designated that a breath test be administered, the officer did not have the authority to make another selection because the officer was dissatisfied with the results and the defendant had the right to refuse subsequent tests. State v. Warmack, 230 Ga. App. 157, 495 S.E.2d 632 (1998).
Miranda warnings are not necessary before requesting additional tests now that the 1998 amendment of O.C.G.A. § 40-5-67.1 authorizes an officer to require additional tests. State v. Moses, 237 Ga. App. 764, 516 S.E.2d 807 (1999).
Trial court's suppression of urine test results could not be sustained on the ground that Miranda warnings were not given to a DUI arrestee before the arrestee decided to submit to a urine test after taking a breath or blood test. State v. Coe, 243 Ga. App. 232, 533 S.E.2d 104 (2000), overruled on other grounds by State v. Turnquest, 305 Ga. 758, 827 S.E.2d 865 (2019).
An arrestee is not, under Georgia constitutional or statutory law, entitled to Miranda warnings before deciding whether to submit to the state's request for an additional test of breath, blood, or urine. State v. Coe, 243 Ga. App. 232, 533 S.E.2d 104 (2000), overruled on other grounds by State v. Turnquest, 305 Ga. 758, 827 S.E.2d 865 (2019).
Practice and Procedure
No requirement to prove age if proper warning given and acknowledged.
- O.C.G.A. § 40-5-67.1(b) specifies two different implied-consent notices based on whether a driving under the influence suspect is age 21 or over; when the defendant specifically stipulated at trial that the police officer read the correct warning, whether the state properly proved that the defendant was over 21 was irrelevant. Ahn v. State, 255 Ga. App. 547, 565 S.E.2d 823 (2002).
DUI arrestee had no standing to challenge statute.
- Plaintiff, whose license was confiscated by the officer at the time of arrest for DUI and who was issued a citation allowing plaintiff to drive pending resolution of plaintiff's case, did not have standing to challenge the administrative suspension procedures established by O.C.G.A. § 40-5-67.1. McGraw v. State, 230 Ga. App. 843, 498 S.E.2d 314 (1998).
No requirement advising test results can be used at trial.
- Required warnings for breath test under O.C.G.A. § 40-5-67.1 does not include language advising that the test results could be used in a trial. St. Germain v. State, 255 Ga. App. 864, 567 S.E.2d 107 (2002).
Challenge to procedures used in reading to the defendant the statutory implied consent warning and the proper working of the Intoxilyzer 5000 machine should have been appropriately raised by a motion in limine, not a motion to suppress. Goddard v. State, 244 Ga. App. 730, 536 S.E.2d 160 (2000).
Service requirements met.
- Trial court erred in substituting the court's judgment for that of the Georgia Department of Motor Vehicle Services and in setting aside a driver's license suspension because an officer complied with O.C.G.A. § 40-5-67.1(f)(1) by handing the driver a copy of the DPS Form 1205 when the driver was arrested. Davis v. Brown, 274 Ga. App. 48, 616 S.E.2d 826 (2005).
Failure to timely request hearing.
- Trial court erred by reversing the decision of the Georgia Department of Driver Services because the evidence supported the decision of the department in denying, as untimely, the driver's request for an administrative license suspension hearing, pursuant to O.C.G.A. § 40-5-67.1(g), since the actions of the driver's attorney in failing to mail a timely request for a hearing were imputed to the driver. Mikell v. Hortenstine, 334 Ga. App. 621, 780 S.E.2d 53 (2015).
Failure to hold hearing within 30 days.
- Failure to hold a hearing within the 30-day period provided for in former § 40-5-55(d) (see now subsection (g) of O.C.G.A. § 40-5-67.1) did not warrant dismissal of the charges under the implied consent law. That provision was not mandatory but directory. Hardison v. Fayssoux, 168 Ga. App. 398, 309 S.E.2d 397 (1983).
Family emergency causing failure to make timely response.
- When the driver left Georgia shortly after the driver received notification of suspension of the driver's license and the right to a hearing in order to travel to another state to take care of the driver's daughter following surgery, this unfortunate family emergency did not rise to the level of a legal excuse for failing to respond within the mandatory time period. Earp v. Harris, 191 Ga. App. 414, 382 S.E.2d 156 (1989) (decided under O.C.G.A. § 40-5-55).
Mailing request for hearing.
- Date on which a document is postmarked, rather than the date on which a document is mailed, is determinative of the document's timeliness; thus, in deciding whether the mailing of a request for a hearing was made within the time limit of O.C.G.A. § 40-5-67.1(g), the trial court erred in determining that the date on which the document was mailed was controlling. Department of Pub. Safety v. Ramey, 215 Ga. App. 334, 450 S.E.2d 332 (1994).
Instruction based upon
§ 40-5- 55(a). - In a prosecution for driving under the influence of alcohol, since there was no jury question as to consent, an instruction to the jury based upon former Code 1933, § 68B-306(a) (see now O.C.G.A. § 40-5-55), was in error, but it was harmless error. Hardeman v. State, 147 Ga. App. 120, 248 S.E.2d 189 (1978) (decided under former Code 1933, § 68B-306.
Charge including the first sentence of O.C.G.A. § 40-5-55(a) was not prejudicial. Trotter v. State, 179 Ga. App. 314, 346 S.E.2d 390 (1986); Brantley v. State, 199 Ga. App. 623, 405 S.E.2d 533, cert. denied, 199 Ga. App. 905, 405 S.E.2d 533 (1991).
"Voluntariness" charge not required.
- Trial court did not err in refusing appellant's request to charge on the "voluntariness" of appellant's consent to a scientific testing of appellant's bodily fluids. Kirkland v. State, 206 Ga. App. 27, 424 S.E.2d 638 (1992).
Implied consent.
- State was not required to prove the defendant's compliance with the mandatory language of O.C.G.A. § 40-5-67.1 since the defendant had expressly stipulated that "implied consent was given." Gill v. State, 229 Ga. App. 462, 494 S.E.2d 259 (1997).
Independent test upon request.
- Although the police officer fulfilled the officer's duty of reading to the defendant the applicable implied consent notice about submitting to state-administered chemical tests for the purpose of determining if the defendant was under the influence of alcohol, the failure to administer the independent urine test that the defendant requested pursuant to that notice meant that the state-administered breath test was inadmissible to support the defendant's DUI conviction. Johnson v. State, 261 Ga. App. 633, 583 S.E.2d 489 (2003).
Arresting officer did not make a reasonable effort to accommodate a defendant's request for an independent blood test by qualified personnel of the defendant's own choosing, as required under O.C.G.A. §§ 40-5-67.1(b)(2) and40-6-392(a)(3), because the officer unilaterally chose the location for the independent test. State v. Metzager, 303 Ga. App. 17, 692 S.E.2d 687 (2010).
O.C.G.A. § 40-6-392(a)(4), with regard to an independent chemical test of blood, specifies no deadline for requesting full information, no timetable for supplying the information, and no penalty for the state's failure to produce the information. State v. Thompson, 334 Ga. App. 692, 780 S.E.2d 67 (2015).
Failure to address voluntariness of consent.
- In a DUI case, the trial court erred by failing to address the issue of the voluntariness of the defendant's consent to the breath test under the totality of the circumstances, including the defendant's contention that the defendant was uncomfortable and in pain when the implied consent notice was read and that the implied consent notice contained the misleading, coercive threat that the refusal to submit to the breath test could be used as evidence at trial. Melton v. State, 354 Ga. App. 828, 841 S.E.2d 481 (2020).
Erroneous admission of test results.
- When an officer failed to read appropriate warnings to the defendant, it was error to admit results of the defendant's breath tests, even though the defendant had stipulated to the facts that would be demonstrated by the results of the tests, i.e., that the defendant had a blood alcohol level of .207. Richards v. State, 269 Ga. 483, 500 S.E.2d 581 (1998), reversing Richards v. State, 225 Ga. App. 777, 484 S.E.2d 683 (1997).
Trial court erred in denying the defendant's motion to suppress the results of a state-administered breath test given after the defendant initially refused to take such a test as there was no evidence that the defendant was asked a second time whether the defendant would consent to the test or that the defendant rescinded the defendant's refusal and thereafter consented. Howell v. State, 266 Ga. App. 480, 597 S.E.2d 546 (2004).
Test results admissible.
- Trial court did not err in admitting at trial the defendant's failure of the horizontal gaze nystagmus test in a case involving vehicular homicide, driving under the influence, and other offenses because that evidence was admissible not only because the evidence showed impairment, but also because the evidence tended to prove that the defendant was a less safe driver at the time the van struck and killed the pedestrian. Cromartie v. State, 275 Ga. App. 209, 620 S.E.2d 413 (2005).
Because the Miranda requirements were not triggered until the defendant's arrest, and after performance of the field sobriety tests, suppression of the test results was not required. Doyle v. State, 281 Ga. App. 592, 636 S.E.2d 751 (2006), overruled on other grounds by State v. Turnquest, 305 Ga. 758, 827 S.E.2d 865 (2019).
Trial court properly denied a defendant's motion to suppress the results of the breath test administered with regard to the defendant's conviction for driving with an unlawful alcohol concentration because the defendant's statement that "I will take a blood test" was not a request for an independent test under the implied consent law but was an attempt to designate which test would be administered by the state, which was not an option for the defendant; further, the officer's response to the defendant merely clarified the designation that the state-administrated test would be a breath test and did not mislead the defendant regarding the defendant's right to have an independent chemical test. Anderton v. State, 283 Ga. App. 493, 642 S.E.2d 137 (2007).
The trial court did not err in denying the defendant's motion in limine to suppress the results of a state-administered breath test as an officer's implied consent warning was substantively accurate so as to allow the defendant to make an informed decision about whether to consent to the test, and solely referred to the defendant's privilege to drive within the state of Georgia with a Georgia driver's license, and not the defendant's Pennsylvania license; further, the officer's initial statement was nothing more than an attention-grabbing preface, and as such did not constitute a substantive change that altered the meaning of the implied consent notice thereafter recited to the defendant. McHugh v. State, 285 Ga. App. 131, 645 S.E.2d 619 (2007).
Trial court did not err in denying the defendant's motion to exclude the results of a state-administered breath test because a state trooper's initial overstatement of the legal blood alcohol concentration, which the trooper corrected immediately, was not so misleading that it rendered the defendant incapable of making an informed decision about whether to submit to chemical testing; the videotape recording demonstrated that before the trooper read the implied consent notice, the defendant told the trooper that the defendant knew that 0.08 grams was the legal limit applicable to individuals. Travis v. State, 314 Ga. App. 280, 724 S.E.2d 15 (2012).
Court of appeals did not err in reversing an order granting the defendant's motion to suppress evidence of the state's breath test results because the procedures followed by the state comported with the fundamental fairness required by due process; the police officer delivered to the defendant the required implied consent notice in an accurate and timely manner, thereby informing the defendant of the right to an independent test under O.C.G.A. § 40-6-392(a)(3), and thus, the state was under no constitutional duty to immediately inform the defendant of the results of the state-administered breath test. Padidham v. State, 291 Ga. 99, 728 S.E.2d 175 (2012).
Trial court properly denied the defendant's motion to suppress the results of the defendant's breath test because the officer's reading of the implied consent notice was accurate, the officer asked whether the defendant consented, the officer told the defendant to answer yes or no, and the officer's statement, that "as long as you continue to be cool and be cooperative, I'll make the process go by real quick for you," was not coercive or deceptively misleading and did not render defendant incapable of making an informed decision about whether to submit to the breath test. Miller v. State, 317 Ga. App. 504, 731 S.E.2d 393 (2012).
Trial court properly denied defendant's motion in limine to exclude evidence that defendant refused chemical testing based on the testimony of a deputy that while in defendant's hospital room, a ticket was written for drunk driving and defendant was advised of the custodial arrest; thus, there was no error in the trial court's determination that a reasonable person in defendant's position would not think that they were free to leave at the time the deputy read the implied consent warnings. Plemmons v. State, 326 Ga. App. 765, 755 S.E.2d 205 (2014).
Grant of the defendant's motion to suppress was reversed because the trial court erred in concluding that the defendant did not actually consent to the state-administered blood test under the totality of the circumstances as the undisputed evidence in the video recording demonstrated that the defendant's consent was free and voluntary and the 20-minute delay in the officer's implied consent notice resulted from the officer complying with the defendant's request to perform field sobriety tests. State v. Domenge-Delhoyo, 338 Ga. App. 439, 790 S.E.2d 139 (2016).
In a DUI per se case, the trial court did not err in denying the defendant's motion to suppress the results of a chemical testing of the defendant's blood because the defendant freely and voluntarily consented to the test as the defendant gave an affirmative response to the officer's question pursuant to the implied consent notice; the officer did not employ shows of force; and, at the fire station, the defendant reaffirmed the defendant's assent before the medic drew the defendant's blood. Jacobs v. State, 338 Ga. App. 743, 791 S.E.2d 844 (2016).
Defendant's motion in limine excluding the results of the defendant's breath test was improperly granted because the evidence, including the videotape of the stop, did not show that the officers used fear, intimidation, threat of physical punishment, or lengthy detention to obtain the defendant's consent to the test; the defendant's intoxication, youth, lack of education, or low intelligence did not somehow negate the voluntariness of the defendant's consent; the implied consent notice read to the defendant informed the defendant of the choice of either agreeing or refusing to submit to chemical testing, and the possible consequences for each choice; and the defendant immediately agreed to submit to the breath test. State v. Young, 339 Ga. App. 306, 793 S.E.2d 186 (2016).
Trial court did not err in denying the defendant's motion to suppress evidence obtained in a warrantless blood test because the implied consent notice was read to the defendant, the defendant gave an affirmative answer to the question posed by the implied-consent language, the defendant did not appear to be impaired to the extent that the defendant did not understand what was being asked, and the officer did not force or coerce the defendant to take the test. McKibben v. State, 340 Ga. App. 89, 796 S.E.2d 478 (2017).
Trial court erroneously suppressed the breath-test evidence obtained when the defendant was arrested for, inter alia, driving under the influence of alcohol because there was no evidence that the officer used fear, intimidation, threat of physical punishment, or a lengthy detention to obtain the defendant's consent to the breath test; there was no evidence that the defendant's age, intelligence, or level of education hindered the defendant's ability to understand the implied-consent notice; the notice, as read to the defendant, made it clear that the defendant had the right to refuse testing; and the defendant was advised of the various consequences of the defendant's refusal to consent to any testing. State v. Jacobs, 342 Ga. App. 476, 804 S.E.2d 132 (2017).
Argument based on machine's removal or repair.
- Trial court properly refused to suppress evidence of a defendant's chemical breath test; testimony from an officer and proof that a current implied consent card contained the same language as the card used during the defendant's arrest allowed the trial court to conclude that the officer advised the defendant of the defendant's implied consent rights, and as there was evidence that the breath test machine was working properly at the time of the defendant's breath test, any argument regarding the machine's subsequent removal or repair went to the weight of the results, not their admissibility. Jones v. State, 285 Ga. App. 352, 646 S.E.2d 323 (2007), cert. denied, No. S07C1407, 2007 Ga. LEXIS 758 (Ga. 2007).
Trial court did not err in admitting the results of a blood test administered to the defendant in the course of medical treatment as the right to refuse a state-administered test was entirely independent of the state's prerogative, pursuant to a warrant obtained in accordance with the Fourth Amendment, to obtain the results as other evidence of a crime. Rylee v. State, 288 Ga. App. 784, 655 S.E.2d 239 (2007).
The trial court did not err in denying the defendant's motion to suppress the results of a blood test as the notice given to the defendant by a state trooper under the implied consent law, O.C.G.A. § 40-5-67.1(a), was sufficiently accurate to permit the defendant to make an informed decision about whether to consent to testing and the evidence failed to show that the defendant requested an independent test. Collins v. State, 290 Ga. App. 418, 659 S.E.2d 818 (2008).
In defendant's trial for driving under the influence under 18 U.S.C. §§ 7 and 13 and O.C.G.A. § 40-6-391 and an open container violation under O.C.G.A. § 40-6-253, a motion to suppress evidence obtained as a result of a Selective Traffic Enforcement Program roadblock was denied because the roadblock reasonably fit within the Fourth Amendment constraints. Implied consent protections did not apply to field sobriety tests because the defendant was not under arrest at the time such tests were performed. United States v. Howard, F. Supp. 2d (S.D. Ga. Sept. 24, 2008).
Test results can be used for driving offenses.
- In a prosecution for driving under the influence of marijuana and driving under the influence of drugs to the extent of being a less safe driver, even though the hospital consent form signed by the defendant was entitled "Request for Alcohol Testing," the test results, which were positive for marijuana, were admissible since the defendant had earlier consented to testing after receiving the required implied consent notice. State v. Lewis, 233 Ga. App. 390, 504 S.E.2d 242 (1998).
Test results cannot be used for possession offenses.
- Because the implied consent warning did not inform the defendant that evidence from a blood test could be used against the defendant for purposes other than determining if the defendant was "under the influence of alcohol or drugs," test results were properly suppressed in a prosecution of the defendant for possession of cocaine. State v. Long, 232 Ga. App. 445, 502 S.E.2d 298 (1998).
Defendant's consent to testing in response to the implied consent warning was given with the understanding that the consent was to determine if the defendant was under the influence for purposes of violations of O.C.G.A. § 40-6-391 and the test results could not be used to support a charge of possession of marijuana. State v. Lewis, 233 Ga. App. 390, 504 S.E.2d 242 (1998).
Location of subject matter jurisdiction of appeals.
- Both the superior court of the county of residence of the petitioner and the Fulton County Superior Court would have subject matter jurisdiction of appeals arising out of applications of Ga. L. 1968, p. 448 (see now O.C.G.A. § 40-5-67.1). Burson v. Webb, 125 Ga. App. 824, 189 S.E.2d 120 (1972) (decided under Ga. L. 1968, p. 448).
Due process was not violated by the failure to return the defendant's plastic license following a license suspension hearing which was resolved in the defendant's favor since the rationale for confiscation of the license in the first place was a pending charge under O.C.G.A. § 40-6-391. Wright v. State, 228 Ga. App. 717, 492 S.E.2d 581 (1997).
Driver entitled to a hearing.
- Trial court could have found that the Georgia Department of Motor Vehicle Safety acted arbitrarily and capriciously and abused the court's discretion in applying the 10-day notice requirement as it could be inferred that the DPS Form 1205 served on a driver was seized by an officer during the driver's arrest; the driver was entitled to a hearing before an administrative law judge, despite the driver's failure to request a hearing within the 10-day time period. Davis v. Brown, 274 Ga. App. 48, 616 S.E.2d 826 (2005).
Law enforcement must be aware of serious injury or fatality.
- O.C.G.A. § 40-5-67.1(a) provides the temporal connection not expressly set forth in O.C.G.A. § 40-5-55(a); thus, the officer's request for testing is legally viable under the second contingency of O.C.G.A. § 40-5-55(a), the driver's involvement in a traffic accident resulting in serious injuries or fatalities, only if at the time of the request the driver has been involved in a traffic accident that has resulted in serious injuries or fatalities of which law enforcement is aware. Snyder v. State, 283 Ga. 211, 657 S.E.2d 834 (2008).
Out-of-state drivers.
- Since the defendant held an out-of-state driver's license and the warning discussed the consequences for a driver's Georgia license, there was no evidence to support a finding that the implied consent notice given to the defendant misrepresented in any manner the "legitimate consequences" of the defendant's refusal to submit to the tests. State v. Haddock, 235 Ga. App. 726, 510 S.E.2d 561 (1998).
OPINIONS OF THE ATTORNEY GENERAL
Editor's notes.
- In light of the similarity of the statutory provisions, opinions under former Code 1933, § 68A-902.1, Ga. L. 1968, p. 448, and Ga. L. 1983, p. 100 are included in the annotations for this Code section.
Time of applicability.- Provisions of the DUI statute which merely provide new trial procedures may be applied to all cases tried on or after September 1, 1983, regardless of when the violations occurred. All other provisions can be applied only to the defendants whose alleged illegal conduct occurred on or after September 1, 1983. 1983 Op. Att'y Gen. No. U83-52 (decided under Ga. L. 1983, p. 100).
Election of test by driver.- Driver has no election of the chemical test to be administered. 1977 Op. Att'y Gen. No. 77-21 (decided under former Code 1933, § 68A-902.1).
Driver may designate additional chemical test.
- It is only with regards to the independent or additional test (as provided for in O.C.G.A. § 40-6-392) that the driver may designate the chemical test to be administered. 1977 Op. Att'y Gen. No. 77-21 (decided under former Code 1933, § 68A-902.1).
Advisement of driver's right to additional test.- Driver must be informed of driver's right to an additional test so that the driver may challenge the accuracy of the chemical test administered by the state. 1977 Op. Att'y Gen. No. 77-21 (decided under former Code 1933, § 68A-902.1).
Responsibility of obtaining the additional test rests with the driver. 1977 Op. Att'y Gen. No. 77-21 (decided under former Code 1933, § 68A-902.1).
Arresting officer must execute required affidavit.- Affidavit required as a basis for the suspension of a driver's license for failure to comply with the statute cannot be executed by an officer other than the arresting officer. 1970 Op. Att'y Gen. No. U70-82 (decided under Ga. L. 1968, p. 448).
For legal status and effect of alcolyzer test, see 1972 Op. Att'y Gen. No. 72-46 (decided under Ga. L. 1968, p. 448).
RESEARCH REFERENCES
Am. Jur. 2d.
- 7A Am. Jur. 2d, Automobiles and Highway Traffic, § 124 et seq.
Proof and Disproof of Alcohol-Induced Driving Impairment Through Breath Alcohol Testing, 4 POF3d 229.
Unreliability of the Horizontal Gaze Nystagmus Test, 4 POF3d 439.
Proof and Disproof of Alcohol-Induced Driving Impairment Through Evidence of Observable Intoxication and Coordination Testing, 9 POF3d 459.
ALR.
- Validity, construction, and application of statute or ordinance relating to granting or revocation of license or permit to operate automobile, 125 A.L.R. 1459.
Suspension or revocation of driver's license for refusal to take sobriety test, 88 A.L.R.2d 1064.
Admissibility in criminal case of blood alcohol test where blood was taken from unconscious driver, 72 A.L.R.3d 325.
Request for prior administration of additional test as constituting refusal to submit to chemical sobriety test under implied consent law, 98 A.L.R.3d 572.
Admissibility in criminal case of blood-alcohol test where blood was taken despite defendant's objections or refusal to submit to test, 14 A.L.R.4th 690.
Destruction of ampoule used in alcohol breath test as warranting suppression of result of test, 19 A.L.R.4th 509.
Admissibility in criminal case of evidence that accused refused to take test of intoxication, 26 A.L.R.4th 1112.
Snowmobile operation as DWI or DUI, 56 A.L.R.4th 1092.
Sufficiency of showing of physical inability to take tests for driving while intoxicated to justify refusal, 68 A.L.R.4th 776.
Driving while intoxicated: subsequent consent to sobriety test as affecting initial refusal, 28 A.L.R.5th 459.
Operation of mopeds and motorized recreational two-, three-, and four-wheeled vehicles as within scope of driving while intoxicated statutes, 32 A.L.R.5th 659.
Validity of police roadblocks or checkpoints for purpose of discovery of alcoholic intoxication-post-Sitz cases, 74 A.L.R.5th 319.
Mental incapacity as justifying refusal to submit to tests for driving while intoxicated, 76 A.L.R.5th 597.
Authentication of organic nonblood specimen taken from human body for purposes of analysis, 78 A.L.R.5th 1.