IMPLIED CONSENT IN DUI CASES There is a fair amount of confusion regarding what is called implied consent (IC) in DUI investigations. First, as I always point out, there is a very simple rule that if followed can avoid 100% of DUI arrests. If you drink even 1 beer and decide that you need to go somewhere, either get someone to drive or stay where you are. Trying to calibrate the way that you feel after drinking and deciding that you are “ok” has led to thousands of DUI arrests in Georgia alone. Also, there are no apps for that. Second, a full discussion of IC would take thousands of pages. This is a nutshell version of the general aspects of IC for people who are over 21 and do not have a CDL license. For specific questions or issues, contact your criminal defense attorney.
With that understanding, when a person is arrested for DUI, the police officer will almost always read or recite what is called the Implied Consent Notice. Well, what is IC anyway? It is legal concept created by the General Assembly that assumes every person in Georgia driving vehicles on roads has consented to being tested by law enforcement for alcohol and/or drugs if the officer believes that driver is under the influence of alcohol or drugs. It is the primary mechanism used by law enforcement to obtain physical evidence in a DUI prosecution. When the IC notice is read, the officer is asking the driver for a specimen of the driver’s blood or breath. (Keep in mind that the portable alcosensor that is sometimes brought out by an officer at the scene is a field sobriety test. This, and other field sobriety tests, should never be taken by the driver under any circumstances.) The IC notice is referencing the Intoxilizer machine that is usually at the police station. Now, the driver can agree to submit to testing pursuant to IC or not. However, a refusal can have negative consequences. The main consequence is that a driver could lose his or her privilege to drive for 12 months. If the driver agrees to take the test, he or she has the right to an independent test at a place of his own choosing. This usually takes place at the closest hospital and is in the form of a blood test. If a driver refuses the state’s administered test, he or she will probably be given a 1205 form. Ignoring this form can cause further problems. If the officer executes a 1205 and gives the driver a copy, then the driver has 10 days to request a hearing. If this is not done, then the driver’s license will be suspended. If the driver requests a hearing, he will be summoned before an administrative law judge. There are several issues that can be considered at the hearing. But, most of these cases are either worked out between the driver and officer at the hearing or rescinded if the officer does not appear. There is also a way for law enforcement to bypass IC altogether; the search warrant. Under some circumstances, a judge can sign a warrant whereby a person’s blood can be taken from his or her person without consent. Out of state drivers are treated a little differently. For example, if the driver has a license from Tennessee, the state of Georgia lacks the authority to suspend it. However, Georgia can prevent the driver from driving within the state of Georgia. Also, Georgia may notify the other state if the driver is ever convicted of DUI. The other state may or may not act on the driver’s license. I hope this generally informs our community about personal rights when stopped by law enforcement. Remember, just because a driver is accused of DUI doesn’t mean he or she is guilty. But, it does mean that their lawyer needs to be notified soon. Again, simply not drinking and driving alleviates these problems, makes our roads safer, and saves lives. The next time you see someone about to drive who has had too much to drink, take charge and make sure a sober driver gets him home.