**Williams v. State- 2015 Update to Georgia Implied Consent and Actual Consent Law**
On March 27, 2015, the Georgia Supreme Court issued a decision in Williams v. State (S14A1625) that essentially says that implied consent under Georgia law does not necessarily amount to actual consent.
In the Williams case, the driver was convicted by a judge of DUI Drugs after he submitted to a blood test under implied consent laws in Georgia. Williams' attorney tried to have the blood results thrown out, arguing that the search violated the Fourth Amendment and was not voluntary under its standard. The argument centered upon whether Georgia's implied consent law is in compliance with Constitutional law on searches and seizures.
Ultimately, the Williams court transferred the case back to the original judge to make the determination of whether Williams' actions amounted to actual consent under the law.
While Williams is not a slam dunk for either side of the aisle, it does reaffirm that this area of your DUI case should be closely examined and argued by your attorney when it could ultimately help your defense.
What is Implied Consent?
In Georgia, being licensed to drive is a privilege, not a right. This means that the State does not have to allow you to drive, and it can attach certain conditions on your license to drive. The conditions are generally for everybody's safety, like limiting the low age of drivers to 16, mandating insurance, designating the types of vehicles certain people can drive, etc. One condition of having the privilege to drive in Georgia is to allow the authorities to take a test of your breath, blood, or urine if they believe that you are Driving Under the Influence.
"Implied Consent" is the idea that you, as a licensed driver, have already consented to the testing because you are choosing to drive on Georgia's roads. However, even though you have impliedly consented to testing, you still have the option to refuse the testing and give up the privilege to drive.
So when an Officer stops a car and believes that the Driver is under the influence of drugs or alcohol, the Officer will arrest the Driver and read an "Implied Consent Notice" to the Driver from a little card. The Driver can agree, or consent, to the test or the Driver can refuse the test. Only in very special circumstances can the police take a test of blood, breath, or urine right then without the Driver's consent.
What is the Test of my Blood, Breath, or Urine?
If the Driver consents to the test then the Officer will have the choice of what test to take. At any time prior to the actual test, the Driver can "revoke consent" by clearly telling the Officers that he or she does not want to take the test. To the Courts, revoking consent is just like if the Driver had refused to take the test when he or she was arrested.
If the Officer believes that the Driver is under the influence of alcohol, then the Officer will probably have the Driver take a breath test. The hand-held breathalyzer device that the Officer may have used when the Driver was arrested is not the real breath test. Most police stations have a large, computerized breath testing machine operated by a specially trained officer. That officer will likely read the same little card that the arresting Officer read, and then have the Driver blow a few times into the machine. The machine will conduct the official test.
If the Officer believes that the Driver is under the influence of drugs and/or alcohol, then the Officer may have the driver take a blood test. The Officer will take the Driver to a hospital and ask again for the Driver's consent. Then, in very safe conditions, the Officer will have the Driver's blood drawn by a physician for an official blood test.
Why do the Police read that Little Card?
The Officers will read a Little Card to the Driver if he or she is arrested for a DUI. The Officers actually have a few different Little Cards that vary slightly for if the Driver is under 21 or driving a commercial vehicle. The Officers will carefully read the Little Card word-for-word loudly and clearly. They will not answer any questions about it. They wont advise the driver whether to agree or not. They wont "put themselves in the driver's shoes" if asked. They will repeat the card if asked, and they will repeat the question until the Driver gives an answer.
That Little Card says:
"Georgia law requires you to submit to state administered chemical
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The Officers are very careful at this stage of the arrest. They will often repeat this ritual multiple times at different stages of their investigation. This is because the Driver's actual consent to the testing is so important to the Driver's Fundamental Rights. If the Officer makes a mistake in the phrasing or somehow misleads the Driver into consenting, then the consent and testing might be against the law. If the testing is against the law then the results may be thrown out by the Court. The test results can be such a key piece of evidence that entire cases may be won or lost by an officer's reading of the Little Card.
What happens if I Refuse?
If you refuse then you will lose your license for a year. You can appeal to a special court (the Georgia Office of State Administrative Hearings) for the court to return your license because, for example, the Officer improperly read the card and that caused you to refuse testing. Also, if you refuse then the Officer will be unable to do the testing without first getting a warrant from a Judge. The warrant process may be long and the delay may cause the test results to be unreliable - which is the reason why Officers would prefer to test you immediately by Implied Consent. If you refuse to consent to testing then you will lose your license for a year but the officer is not likely going to be able to test your blood, breath, or urine immediately.
What happens if I Consent?
If you consent then the Officer will almost immediately take you to the station for a breath test or a hospital for a blood draw. The results will be calculated and compared and used in your prosecution for DUI. A breath test will reveal the machine's results for your Blood Alcohol Concentration based on your breath, while a blood test will show a small panel of possible drugs and alcohol and the results of the blood test for each. Different levels of alcohol and drugs will result in different types of DUI prosecution, and a complete absence of drugs or alcohol may lead the officers to drop the DUI charge.
Do the police only have to be looking for Alcohol?
No. The Officers may be looking for any drugs at all, even if they only really suspect you of being under the influence of Alcohol. A blood or urine test may reveal a number of drugs that may lead to your prosecution for DUI. The Officer will state which type of test they want you to take at the end of the Little Card, when he or she asks you the question. In fact, nothing prevents cops from taking more than one type of test! For instance, under the law a cop could ask for both a breath and a blood test from you.
What about my Prescription Drugs?
The presence of the drugs given to you by a doctor through your own prescription may result in your prosecution for DUI. DUI laws are very broad in this respect and any drugs that might impair your ability to drive may lead to a DUI. Look carefully for warning labels like, "Do Not Drive or Operate Heavy Machinery," as these drugs may test positive in your blood and urine and may lead to your arrest for DUI.
If I am arrested for DUI and am read the Implied Consent Notice, may I consult with an Attorney?
You are not entitled to legal counsel when being given your Implied Consent Notice. If you demand an attorney then the Officers may consider that a refusal and you may likely lose your license, just like if you refused. Whether you consent or not through Implied Consent, it is always best to consult with an attorney as soon as you can about your DUI arrest. There are many, many issues that an experienced attorney may be able to identify and argue on your behalf and in your interests in seeing Justice. From start to finish, a DUI case is a large and complex process navigated best by an experienced professional attorney, trained to identify the key points and develop the best strategy for your defense.
The Attorneys at Zeliff | Watson are those such attorneys who specialize in DUI defense and are best able to handle your case. If you have recently been arrested for DUI please call us today.