Understanding Implied Consent and Why it Confuses Most People

Every day I take calls from people who have been arrested for DUI and are surprised they are accused of refusing to take a breath test.  Others are surprised they did not have the right to choose to take a blood test over the officer's request for a breath test.

The confusion is exacerbated by the fact that many people submit to the roadside Alco-sensor and assume that is the “breath test” and then assume they have already submitted to testing.  It is confusing to everyone.  When you add in the decision to submit to testing is made on the side of the road during a stressful police encounter, it is a wonder anyone understands the decision they are being asked to make.

The Georgia Implied Consent Warning is written as if the person on the side of the road is about to have a discussion with his or her law school professor.  It is unintelligible.

Imagine you are about to make one of the biggest decisions of your life, whether or not to submit to testing.  You are ALREADY UNDER ARREST FOR DUI. Then, you are read the following:

Implied Consent Notice for Suspects 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 expense and from qualified personnel of your choosing. Will you submit to the state administered chemical tests of your (designate which tests) under the implied consent law?

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 expense and from qualified personnel of your choosing. Will you submit to the state administered chemical tests of your (designate which tests) under the implied consent law?

Implied Consent Notice for Drivers of Commercial Motor Vehicles:

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 expense and from qualified personnel of your choosing. Will you submit to the state administered chemical tests of your (designate which tests) under the implied consent law?

For the benefit of the reader, please let me translate the Georgia Implied Consent gobbledygook now and for all time:

1. If you are being read implied consent, you are already under arrest for DUI and nothing will change that, even if you test below the so-called “legal limit.”
   
2. When you are read the implied consent warning you are given a choice to submit to the “State-Administered Test,” which means the Intoxilyzer 5000 or Intoxilyzer 9000 at the police station, or a blood or urine test.
   
3. You have a statutory right to refuse to submit to the requested test.
4. The test on the side of the road was not the official breath test.  Failure to submit to the official “State-Administered Test” means you will be charged with refusing to submit to testing.
   
5. If you refuse testing you face up to 12 months without your driver's license.  However, it's easier to win a criminal case without a breath test.  So, it's a “Catch 22” because you may have a better chance of winning your criminal case without the test, but you will likely have a suspended license while your case is pending.
   
6. If you submit to the test the officer requests and test above .08 (for drivers over 21 or above; 0.02 for drivers under 21), your license will be suspended, but you will qualify for a permit to drive (assuming it's a first offense).  However, it is harder to win a criminal case when there is a chemical test above .08 (see the “Catch 22” above).
   
7. You can only get an independent test if you first submit to the test requested by the police officer.  You will have to pay for your own independent test.  The police officer must accommodate your request, including taking you to an ATM to get money to pay for it.  You should always ask for an independent test of your blood.  Make sure to ask for a “chain of custody test,” and make sure it's an analysis of “whole blood,” not “plasma,” because separated blood concentrates your blood alcohol concentration.
   
8. Even though you have a statutory right to refuse testing, the police officer may still get a warrant to take your blood.  Our judiciary is allowing this completely illegal police action.  It's possible to get the worst of both worlds by suffering the driver's license consequences of a refusal while still having a blood test used against you.
   

The implied consent warning and the process associated to it is designed to force people into providing the police evidence to convict them of DUI.  It is a way around the 5th Amendment Right against self-incrimination because it uses the leverage for taking away the privilege to drive to force people to waive actual rights.

If you have been arrested in Atlanta for DUI or anywhere in North Georgia, call now.  We are the top-rated Atlanta DUI Lawyers and here to help.