If you are pulled over in Atlanta for suspected DUI, and are asked to submit to a chemical testing of your breath, blood, or urine, do you have to submit? That is one of the biggest questions we get at the Howard Law Group. Georgia law requires you to submit to chemical testing of your breath, blood, or urine to determine the presence of alcohol or drugs if you are arrested for DUI. But the arresting officer must advise you of how the test results or your refusal to submit to testing can be used against you as well as other notice requirements.
You can refuse to submit to chemical testing, but because driving is deemed a privilege and not a right, the State of Georgia can place restrictions on your driving privilege and also suspend your license.
What is the Implied Consent Law?
The arresting officer must read the appropriate Implied Consent Notice depending on your age or driver’s license status. There are separate notices for drivers age 21 or over, drivers under age 21, and drivers of commercial 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, your Georgia driver’s license or privilege to drive on Georgia highways 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 under the implied consent law?
Unless you were in an accident resulting in serious injury or other exigent circumstances exists, you must be placed under arrest for DUI Less Safe before the officer can read you the implied consent notice and request a State chemical test. Georgia courts have somewhat strictly construed the meaning of “time of arrest.” The officer should not wait until you have arrived at the police station or hospital to request testing, but certain exigent circumstances may excuse a delayed advisement of your implied consent rights.
The implied consent notice must be read in its entirety. 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.
The choice of the type of test lies with the arresting officer and he can request multiple tests. But substantial compliance is critical and if the officer first requests only a breath test and subsequently requests a blood test he must re-read the implied consent notice to properly request the second test. If the officer requests one type of test and you state that you will only submit to a different type of test, your response will be deemed a refusal unless you agree to submit to the test requested by the officer.
If you do not answer the question or otherwise remain silent, your silence will be deemed a refusal to submit to testing. But if you did not understand the implied consent notice, or even if you were in an accident and rendered unconscious, you are deemed to have not withdrawn your consent. The same applies if you do not speak or understand English.
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.
You are not entitled to an attorney when making the decision of whether or not to submit to chemical testing under the implied consent law. Nor is the officer required to advise you of your Miranda rights. And if the officer does read you your Miranda rights and you are advised of your right to remain silent, any subsequent silence in response to the officer’s request for a chemical test will still be deemed a refusal.
A refusal can be justified, though, if you were given a misleading or inaccurate implied consent advisement. For example, the officer cannot influence you to take the test by telling you that he will let you go if your test shows a BAC of less than 0.08 grams or mislead you about how your license will be affected.
If you decide later to submit to chemical testing, your initial refusal may be invalidated. You must affirmatively request the test yourself and your request for testing must be made within a very short and reasonable time after the prior refusal, at a time when the test would still be accurate, when testing equipment is still readily available, when honoring the request would result in no substantial inconvenience or expense to the police, and when you have been in custody of the arresting officer and under observation for the entire time since arrest.
The implied consent notice advises you of your right to an additional independent chemical test of your blood, breath, urine or other bodily substance at your expense and from qualified personnel of your own choosing after first submitting to the required State tests. The officer must make reasonable efforts to accommodate you in obtaining an independent test. You are not entitled to an independent test until after you have submitted to the State’s breath, blood, or urine test. That means that if you refuse to take the State’s chemical test, you will not be allowed to get an independent test.
You must make your request for an independent test within a reasonable time after being read your implied consent rights. Your request does not have to be made directly to the arresting officer and can also be made after rescinding your initial refusal, as long as you submit to the State test.
The officer must make reasonable efforts to accommodate you in obtaining an independent test. If the officer prevents you from obtaining an independent test after you have requested one, the results of the State test you submitted to can be suppressed and not admissible as evidence against you at trial. In evaluating whether your right to an independent test was violated, the courts will look at the totality of the circumstances and specifically: your ability to pay for the requested test; the delay in giving the test if the officer complies with your request; availability of police time at the time the request is made; location of the requested facility; and your ability to make arrangements personally for the test.
Implied Consent Laws are being challenged in Georgia all the time. If you or someone you know has been arrested in Atlanta on a DUI Charge, contact the Howard Law Group ASAP. Let us sort out the details of your arrest and defend you against a unwarranted charge against you.