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Paulding County Criminal Defense Lawyer | Implied Consent

The concept of "implied consent" is a legal fiction, created after the advent of the automobile, to describe the "legal jargon" that identifies the rule to legally coerce motorists suspected of driving under the influence of alcohol or drugs to take a chemical sobriety test. According to this legal fiction, by using the public roadways of the state, a motorist has implicitly consented to submit to testing if a police officer has legitimate cause to believe that the driver may be impaired.

Although a few unusual cases from 40 to 60 years ago allowed an accused to challenge deficient proof in a case that alleged (but did not prove) that an offense occurred on a "public" roadwayIsenhower v. State, 88 Ga. App. 762, 77 S.E.2d 834 (1953), the law in Georgia has never made that distinction as to public property or private property. Cook v. State, 220 Ga. 463, 139 S.E.2d 383 (1964)Madden v. State, 252 Ga. App. 164, 555 S.E.2d 832 (2001)

This legal fiction has been codified into law in Georgia. O.C.G.A. § 40-5-55(a) provides in part that “[a]ny person who operates a motor vehicle upon the highways or elsewhere throughout this state shall be deemed to have given consent, subject to Code Section 40-6-392 [chemical tests for alcohol or drugs in blood], to a chemical test or tests of his blood, breath, or urine or other bodily substances, for the purpose of determining the alcoholic or drug content of his blood if arrested for any offense arising out of acts alleged to have been committed in violation of Code Section 40-6-391. The test or tests shall be administered at the request of a law enforcement officer having reasonable grounds to believe that the person has been driving or was in actual physical control of a motor vehicle upon the highways or elsewhere throughout this state in violation of Code Section 40-6-391.”

Prior to the Act of 1974 which enacted Title 68A, known as “The Uniform Rules of the Road,” the former law, Ga. Code Ann. § 68-1625, did not grant a motorist arrested for DUI the right to have an additional independent chemical sobriety test made at the time of his arrest. Former Ga. Code Ann. § 68A-902.1, enacted in 1974, granted the motorist arrested for DUI the important new right to request an independent chemical test and required the arresting officer to notify the motorist of his right to have an additional test.Nelson v. State, 135 Ga. App. 212, 217 S.E.2d 450 (1975)Torley v. State, 141 Ga. App. 366, 233 S.E.2d 476 (1977). The original law, however, did not require the officer to tell the person the consequences of refusing the test. Whittington v. State, 184 Ga. App. 282, 361 S.E.2d 211 (1987).

Since January 1, 1993 and the passage of the Georgia administrative license suspension law (O.C.G.A. §§ 40-5-67.1 and40-5-67.2), the legislature has added several additional “advisement” requirements. Moreover, since that time the General Assembly has amended the statutes relating to DUI law, administrative license suspensions and our implied consent advisements TWELVE TIMES since January 1, 1994. These dates of changes are January 1, 1994, July 1, 1994, January 1, 1995, April 21, 1995, August 18, 1995, July 1, 1997, March 27, 1998, May 1, 1999, July 1, 1999, July 1, 2000, July 1, 2001, and July 1, 2006.These frequent changes in the implied consent statutes have baffled not only police officers in the field, but attorneys and judges, too. If you are facing 12 months license suspension because of a refusal to submit to the test contact a Paulding county criminal defense lawyer.