Georgia “Implied Consent” Statute

Since 1998, when the Georgia Legislature altered the long-standing laws in Georgia relating to our “implied consent” statute being STRICTLY enforced against the Government, many cases have held that almost anything goes when it comes to reading this notice to a driver accused of DUI. The law was changed because hundreds of DUI defense attorneys were getting cases dismissed or reduced because many police officers were unable to read the “simple” advisement. When a capable DUI lawyer reviews your DUI arrest in GA, he or she is LOOKING for an implied consent violation, among other things.Because the Georgia Supreme Court has already ruled that an arrested Georgia DUI driver has no right to call a DUI lawyer BEFORE answering whether he or she will submit to a breath, blood or urine test – or all 3 tests if the officer asks — knowing your legal rights is critical.
Two fairly new cases from our intermediate court, the Georgia Court of Appeals, reveals how shoddy the warnings can be and still be upheld as being “adequate.” After all, only your right to drive for 12 months is at stake!

The officer need not TELL you what type of test you will be required to take, and it is still valid. The most reliable and accurate place to get an accurate alcohol test is from the vitreous humor (fluid) drawn from inside your eyeball. The new case, Nagata v. State, 319 Ga. App. 513, 736 S.E. 2d 474 (2015) now says that the officer can simply not tell you the TYPE of DUI test you will be given, and that is OKAY. (No, they did not extract from the eyeball, but could have!)

The officer can leave out, mispronounce and/or add words, and that is OKAY in Georgia, too. That new Georgia DUI court decision is State v. Barnard, 321 Ga. App. 20, 740 S.E. 2d 837 (2015). The issue to be decided is whether the warning given was “substantively accurate.” Is that NEBULOUS enough for you?