What is implied consent?

40-5-55. Implied consent to tests to determine presence of alcohol or other drugs
(a) The State of Georgia considers that any person who drives or is in actual physical control of any moving vehicle in violation of any provision of Code Section 40-6-391 constitutes a direct and immediate threat to the welfare and safety of the general public. Therefore, any 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, to a chemical test or tests of his or her blood, breath, urine, or other bodily substances for the purpose of determining the presence of alcohol or any other drug, if arrested for any offense arising out of acts alleged to have been committed in violation of Code Section 40-6-391 or if such person is involved in any traffic accident resulting in serious injuries or fatalities. 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 moving motor vehicle upon the highways or elsewhere throughout this state in violation of Code Section 40-6-391. The test or tests shall be administered as soon as possible to any person who operates a motor vehicle upon the highways or elsewhere throughout this state who is involved in any traffic accident resulting in serious injuries or fatalities. Subject to Code Section 40-6-392, the requesting law enforcement officer shall designate which of the test or tests shall be administered, provided a blood test with drug screen may be administered to any person operating a motor vehicle involved in a traffic accident resulting in serious injuries or fatalities.
(b) Any person who is dead, unconscious, or otherwise in a condition rendering such person incapable of refusal shall be deemed not to have withdrawn the consent provided by subsection (a) of this Code section, and the test or tests may be administered, subject to Code Section 40-6-392.
(c) As used in this Code section, the term “traffic accident resulting in serious injuries or fatalities” means any motor vehicle accident in which a person was killed or in which one or more persons suffered a fractured bone, severe burns, disfigurement, dismemberment, partial or total loss of sight or hearing, or loss of consciousness.
(Acts 2001, p. 208, eff. July 1, 2001.)
Author's Note
Formerly, if a person was “involved in any traffic accident resulting in serious injuries or fatalities,” the officer was authorized by O.C.G.A. § 40-5-55(a) to request a chemical test without first placing that person under arrest. In 2003, however, the Georgia Supreme Court held that this provision authorizes unreasonable searches and seizures in violation of the state and federal constitutions to the extent that it requires chemical testing of the operator of a motor vehicle involved in a traffic accident resulting in serious injuries or fatalities regardless of any determination of probable cause. In the absence of probable cause that the operator has violated the DUI statute, an officer would not be legally authorized to inform the operator of his implied consent rights. Consequently, informing the operator of these rights would be misleading, and any consent based upon this misrepresentation would be invalid. Thus, the results of a blood test procured pursuant to O.C.G.A. § 40-5-55(a) would have to be excluded at trial.Cooper v. State, 277 Ga. 282, 587 S.E.2d 605 (2003). See also Ferguson v. State, 277 Ga. 530, 590 S.E.2d 728 (2003). The new rule of criminal procedure regarding implied consent testing established in Cooper applies retroactively. See Costley v. State, 271 Ga. App. 692, 610 S.E.2d 647 (2005).
The Supreme Court's decision in Cooper makes it clear that O.C.G.A. § 40-5-55(a) is unconstitutional to the extent that it can be interpreted to require an individual to submit to chemical testing solely because that individual was involved in a traffic accident resulting in serious injuries or fatalities. On the other hand, where an individual has been involved in a traffic accident resulting in serious injuries or fatalitiesand the investigating officer has probable cause to believe that the individual was driving under the influence of alcohol or other drugs, the constitutional infirmities are no longer present, and the ensuing search is both warranted and constitutional. In such a case, O.C.G.A. § 40-5-55 does not require that the individual be arrested in order to trigger his implied consent to testing. This is so because the individual may be so incapacitated as a result of the traffic accident that a formal arrest would be unwarranted under the circumstances. Furthermore, an individual involved in such an accident, rather than someone who is merely stopped while driving, is on notice that some inquiry will be made regarding the cause of and responsibility for the accident, and this knowledge would give context to the subsequent reading of implied consent rights. See Hough v. State, 279 Ga. 711, 620 S.E.2d 380 (2005).
It should be noted, however, if the injury suffered in the accident is not one of the serious injuries specified in O.C.G.A. § 40-5-55(c), the rules associated with the reading of an implied consent notice to a suspect following a traffic accident with serious injuries or fatalities would not apply. Rather, the defendant's implied consent rights must be analyzed under that portion of O.C.G.A. § 40-5-55(a)regarding an individual who has been arrested for any offense arising out of acts alleged to have been committed in violation of O.C.G.A. § 40-6-391. See Hough v. State, 279 Ga. 711, 620 S.E.2d 380 (2005).
In circumstances where there has been no traffic accident resulting in serious injuries or fatalities, but the investigating officer has probable cause to believe that the suspect was driving under the influence of alcohol or other drugs, the statutory mandates of O.C.G.A. § 40-5-55 require an arrest prior to any reading of implied consent rights. The arrest necessary before the reading of implied consent, however, does not have to be a formal arrest in which the officer explicitly states to the suspect that he has been arrested. Implied consent is triggered at the point that the suspect is not free to leave and a reasonable person in his position would not believe that the detention is temporary, regardless of whether a formal arrest has occurred. See State v. Handschuh, 279 Ga. 711, 620 S.E.2d 380 (2005), affirming in part and disapproving in part 270 Ga. App. 676, 607 S.E. 2d 899 (2004), which overruled State v. Lentsch, 252 Ga. App. 655, 556 S.E.2d 248 (2001); State v. Goolsby, 262 Ga. App. 867, 871, 586 S.E.2d 754 (2003);Kahl v. State, 268 Ga. App. 879, 602 S.E.2d 888 (2004); and which disapproved Bass v. State, 238 Ga. App. 503, 505-506(3)(b), 519 S.E.2d 294 (1999), overruled on other grounds, Jones v. State, 272 Ga. 900, 537 S.E.2d 80 (2000); Joiner v. State, 239 Ga. App. 843, 522 S.E.2d 25 (1999); Fairbanks v. State, 244 Ga. App. 123, 124(1), 534 S.E.2d 529 (2000); Carthon v. State, 248 Ga. App. 738, 740-741(1), 548 S.E.2d 649 (2001); Oliver v. State, 268 Ga. App. 290, 601 S.E.2d 774 (2004); and any other cases that could be read to support the conclusion that in circumstances where there has been no traffic accident resulting in serious injuries or fatalities, probable cause without an arrest is sufficient to trigger the implied consent warnings in O.C.G.A. § 40-5-55(a).
In Cornwell v. State, 283 Ga. 247, 657 S.E.2d 195 (2008), the Georgia Supreme Court held that the implied consent statute (O.C.G.A. § 40-5-55) as applied to the defendant was not unconstitutional because it allowed for the warrantless compelled testing of a driver's bodily fluids without proof of the existence of exigent circumstances. Since a driver is deemed to have consented to tests of his bodily substances when probable cause exists to arrest him for an alleged violation of O.C.G.A. § 40-6-391, the court found that the existence of exigent circumstances is wholly irrelevant. Indeed, where the driver has been arrested based on probable cause and the state has complied with the statutory implied consent requirements, the driver cannot complain that testing done by the state for the presence of alcohol and drugs violated his rights under the state and federal constitutions to be free from unreasonable searches and seizures.
The import of the language in O.C.G.A. § 40-5-55 is that the arresting officer must have reasonable grounds to believe that the suspect has been driving under the influence before requesting that a chemical test be performed. There is nothing in that language that would exclude testing for drugs as well as alcohol as long as the suspect is properly advised pursuant to the implied consent notice that the tests were being administered for the purpose of determining whether he was under the influence of alcohol or drugs. Although O.C.G.A. § 40-5-55 goes on to provide that, subject to O.C.G.A. § 40-6-392, the officer must designate whether a breath, urine, or blood test will be performed, that language means that the officer must advise the suspect of which test or tests he is requesting the suspect undergo. This language does not require the officer to request that the crime lab test for drugs as well as alcohol. Thus, the officer's failure to make such a request would not render the test results inadmissible. See Meiklejohn v. State, 281 Ga. App. 712, 637 S.E.2d 117 (2006). Contact a Paulding County criminal defense lawyer if charged with DUI today!

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