Georgia DUI: Challenging the Implied Consent Notice

Posted by Richard Lawson | May 14, 2018 | 0 Comments

The results from Georgia DUI Breath and Blood Tests are usually one of the main forms of evidence that the state of Georgia has against you in a DUI case. 

Most people do not know that the officers must read a Georgia Implied Consent Notice before administering these tests. 

There are different Implied Consent Notices based on the age of the driver and his or her driver's license status. This is because different legal limits exist for different drivers. 

If the tests test positive for being over the legal limit in Georgia, then a person will be charged with a DUI in Georgia. The delineations for legal limits in Georgia are as follows: 

  • .08 for Georgia drivers 21 and over
  • .04 for commercial vehicle drivers
  • .02 for drivers under the age of 21

Today, I'd like to focus on ways to challenge the adequacy of the Implied Consent Notice because it can be helpful in either dismissing a DUI case altogether or mitigating harsh Georgia DUI Penalties.

Facts that Challenge the Implied Consent Notice

  • Unless there's a serious accident or injury - you must be placed under arrest for Georgia DUI Less Safe before the officer can even read the implied consent notice and request chemical sobriety testing. The officer should not wait until you have arrived at the police station or hospital to request testing. Georgia courts have determined only certain exigent circumstances may excuse a delayed advisement of your implied consent rights.
  • The implied consent notice must be read in totality.  If the officer gives an inaccurate or misleading advisement of your implied consent rights, he has deprived you of your ability to make an informed decision of whether to submit to chemical testing.
  • If the officer requests only a breath test at first, and then, subsequently requests a blood test, he must re-read the implied consent notice to properly request the second test.  Although the choice of the type of test lies with the arresting officer, and he can request multiple tests, he must read the correct and proper implied consent notice.

What about Refusal?

If you refuse to submit to chemical testing to determine whether you are under the influence of alcohol or drugs, your refusal creates an inference that the test would have shown the presence of alcohol, but the prosecuting attorney will still have to prove that you were impaired to the extent that you were less safe to drive.

A refusal of breath or blood testing in Georgia can be justified, though, if you were given a misleading or inaccurate implied consent advisement. The arresting officer cannot influence you to take the test. The arresting officer also cannot tell you that he will let you go if your test shows less than the legal limit. He also cannot mislead you about how your license will be affected.

What about a Later Decision?

The good news is that if you initially refuse, but decide later to submit to chemical testing, your initial refusal may be invalidated. 

However, you must affirmatively request the test yourself. Your request for testing must be made within a reasonable time after the prior refusal. This “reasonable” time actually means rather quickly because the request must be under the following conditions:

  • When the test would still be accurate
  • When testing equipment is still readily available
  • When honoring the request would result in no substantial inconvenience 
  • When honoring the request would result in no expense to the police
  • When you have been in custody of the arresting officer and under observation for the entire time since arrest.

Georgia DUI Law is complicated. There are many small legal details that can lead to possible Defenses to DUI in Georgia. Contact a top-rated Georgia DUI Lawyer today.

About the Author

Richard Lawson

Managing Partner at Lawson & Berry:


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