Does Implied Consent Affect My DUI Case?

If you have been pulled over for a DUI in Georgia, you may have heard that you gave “implied consent” to have your blood alcohol content (BAC) tested. Here’s what implied consent is, what refusing a chemical test means for your DUI case, and what else you need to know about blood-alcohol or drug testing in Georgia.

What is Implied Consent?

Georgia, like every other state, has laws against drunk driving and driving under the influence of drugs (together, DUI). A Georgia DUI conviction brings with it fines, probation, license restrictions, and even jail time.

Implied consent is one of the legal mechanisms police use to obtain scientific evidence to assist with proving that you are driving drunk or drugged. It is a law that says by driving on a Georgia road you agree to take a chemical test if police believe there is alcohol or drugs in your system after you are arrested for DUI.

Think of it like the Terms of Service on a website. You have probably visited a website with a pop-up that says something like “by continuing to use our website you are agreeing to our terms of service.” You probably never read the terms of service, but you continued to use the site anyway. Later if, for example, you posted a comment that goes against the community rules, the webmaster could delete the comment or even ban you from the site based on your implied consent to the terms of service.

The same is true for Georgia’s implied consent law. You don’t have to sign any paperwork or even have a Georgia driver’s license to be subject to the implied consent requirements that you submit to a chemical test. Instead, just by driving on a Georgia highway you implicitly agree to take a chemical test if the police ask you to. You can revoke your consent and refuse to provide the sample requested by the police, but doing so may subject you to a significant license suspension. In addition, the police may decide that they have sufficient reason to obtain a search warrant and obtain your blood or urine without your consent.

How Does Georgia’s Implied Consent Law Work?

Georgia’s implied consent law only comes into play after you have been arrested. If a police officer stops you for something else -- speeding, swerving in your lane, or a broken tail light, for example -- you can refuse any roadside field sobriety tests, including the roadside portable Alco-Sensor breath test he or she might use to establish “probable cause” to believe you were driving drunk or drugged. Often it is in your best interest to do just that.

However, the rules change after you have been arrested for DUI. In Georgia, the police officer must read you a Georgia implied consent notice before asking you to complete any chemical tests. This notice -- which will be read off a card -- tells you what your rights are around chemical testing and what will happen if you refuse to provide a breath, urine, or blood sample. It also lets you know you have the right to request a separate independent test. The independent test can be useful in your DUI defense case later on, but because of the way the body processes alcohol and drugs, the test should be done around the same time as the police’s chemical test.

Once you have been read the implied consent notice, you have the right to decide whether to take the requested test or not. If you take the test, the results can be used in a later DUI or drug case against you. However, refusing a chemical test has consequences of its own.

What Happens if I Refuse a Breath, Urine or Blood Test?

Even after you have been arrested, you still have a constitutional right not to incriminate yourself. This includes the right to refuse an Intoxilizer breath test that would provide evidence of your blood alcohol content to help the police try to prove you were driving under the influence. Georgia law treats the refusal to submit to breath testing differently than blood testing. However, exercising that right and refusing any chemical testing does have consequences.

Refusing to take a chemical test of your blood or urine triggers a one-year driver’s license suspension. This consequence is imposed by the Georgia Department of Driver Services (DDS) and is not part of your criminal case. You have the ability to appeal your license suspension by demanding a hearing, but the demand for a hearing to contest the suspension must be filed timely. The time limit is short and you should talk to an experienced DUI attorney right away if you are arrested for drunk driving so you don’t miss the deadline associated with demanding a hearing.

How Will Implied Consent Affect My DUI Case?

Before 2019, refusing a breath test carried heavy consequences in your criminal DUI case as well. The state’s implied consent law allowed a refusal to be used against you in court. Essentially, the prosecutor was allowed to tell the jury to presume the test would come back positive for alcohol or drugs.

Then, in February 2019, the Georgia Supreme Court said that consequence violated the state’s constitution by requiring the act of submitting to breath testing. Allowing the prosecutor to comment on an individual’s refusal to submit to the act of breath testing would penalize the exercise of a Georgia Constitutional right. The State cannot use the refusal against you at trial.

Since that 2019 Georgia Supreme Court decision, the fact that you refused a breath test won’t show up in your criminal case at all. It won’t work for you, but it also can’t work against you. Instead, the prosecutor will need to rely on any dexterity based field sobriety tests (which are much more fallible) and any blood or urine tests completed based on a warrant after your arrest.

However, the rule is different if the police ask for blood or urine testing. Presently, courts are taking the position that refusal to submit to a blood test or urine test is admissible at trial. The constitutional implications of chemical testing is a significant issue in a DUI case. These laws surrounding implied consent are constantly being challenged and evolving. The law that applied last year or last month may be different by the time your case is presented at trial. You need an attorney that follows these changes to help you prepare your best case.

Consenting to or refusing a blood alcohol test won’t automatically dictate the outcome of your case. However, knowing the rules that are applicable in your case and excluding chemical testing is a great start to defending DUI charges. At The McCoy Law Firm, our criminal and DUI attorneys know how to work around a positive breath or blood test, and how to object if the prosecutor tries to use your refusal against you under Georgia’s implied consent law. If you are facing a DUI charge, don’t wait. Contact Criminal & DUI Law of Georgia so we can begin working on your case right away.