If you are pulled over for driving under the influence (DUI) in Georgia, you may be asked to submit to a blood, breath or urine test. You may wonder if you have to submit to the test or if you can refuse. The answer to these questions lies in Georgia’s implied consent law.
Requirements of the law
Under Georgia’s implied consent law, in exchange for the privilege of operating a motor vehicle on the state’s roadways, the driver is legally deemed to have consented to take a chemical test of his or her blood, breath, urine or other bodily substances to determine the presence of alcohol or drugs if:
- The driver is arrested for being in actual physical control of a moving vehicle while under the influence of alcohol or drugs to the extent that it is less safe for the driver to drive.
- The driver is involved in a traffic accident resulting in serious injuries or fatalities.
A chemical test result is not a prerequisite to arrest a driver for DUI in the state of Georgia. An officer can arrest a driver for DUI if he/she has probable cause to believe the driver is operating a motor vehicle while under the influence of alcohol or drugs. It is only after an arrest has actually been made that the implied consent law comes into play and “requires” the driver to submit to a chemical test of his or her blood, breath or urine.
However, an officer cannot arrest a person for DUI unless he or she was in “actual physical control” of the vehicle. Under the law, this phrase has a fairly loose definition. Obviously, it includes situations where the driver is in a position to make the car move. However, Georgia courts have also found that drivers who were recently in the car—but not found in the car—to be in actual physical control of the car when they were the only person who could have been driving the car.
In addition to DUI arrests, Georgia’s implied consent law gives law enforcement the discretion to require chemical testing when the driver is involved in a traffic accident resulting in serious injuries or fatalities. Under the law, this includes instances in which a person was killed or suffered bone fractures, severe burns, disfigurement, dismemberment, loss of consciousness, loss of sight or hearing.
Georgia drivers have the right to refuse chemical testing, but doing so can have significant consequences. If you refuse the test, the arresting officer is empowered to confiscate your license and issue you an administrative suspension notice (also known as a DDS 1205 form). This notice also serves as a 30-day driving permit if signed by the arresting officer at the bottom of the notice. You have a right to challenge this administrative suspension of your driver’s license by requesting a hearing but must do so by sending an appropriate letter to the Georgia Department of Driver Services within 10 business days from the date of your arrest. If you are not successful at this hearing (or do not request one), your license will be suspended for a period of one year and there is no limited driving permit for work, school, etc., available for this suspension. This challenge to the administrative suspension of your driver’s license is separate and apart from your court case. It will be heard at a different time, by a different judge and, oftentimes, at a different location than the court proceeding associated with your DUI arrest and court case. You may be issued an administrative suspension notice by the arresting officer for reasons other than your refusal to submit to chemical testing, but the suspension resulting from your refusal to submit to chemical testing is much more harsh.
Contact an Attorney
Other than the administrative suspension of your driver’s license, there are no other penalties directly associated with your refusal to submit to chemical testing; however, this type of suspension can be very problematic if sustained and upheld as it will prevent you from being able to legally drive for an entire year. It is important for drivers to understand that you can be convicted of DUI even though the State does not have a chemical test result to introduce into evidence against you at trial. You should also understand that your refusal to submit to a chemical test can be used against you at trial.
Any time you are arrested for DUI, it is important for you to contact an attorney for legal advice and representation as the penalties even for a first-time DUI conviction are significant and include jail time, fines, community service, etc. It is even more important for you to have qualified and experienced legal representation if you have refused to submit to chemical testing and your driver’s license has been administratively suspended by the arresting officer. Only an experienced DUI attorney can help you navigate through both the administrative license suspension process and the separate court process and develop a strategy to allow you to continue to legally drive on the roadways of this state.