One of the most effective ways for police officers to prove that a driver was impaired while driving is through a chemical test, typically a breath test. Other tests, such as urine or blood tests, are also possible. Two lawsuits challenging certain aspects of the informed consent law brought a loophole to light.
On April 28, 2019, Governor Brian Kemp signed House Bill 471. It became effective immediately once he signed it. This bill addressed the loophole in the law created by a ruling in Elliot v State and Olevik v State.
Both cases found that people can’t be compelled to take a breath test and that refusing this test isn’t admissible in a criminal trial. Before the governor signed the law, it was largely unclear how those two rulings would affect the admissibility of all breath tests in criminal cases.
How does implied consent work now?
Under the new law, police officers need to read a person the Implied Consent Notice as a protection so the breath test result can be admissible in court. Even with the new law’s implementation, refusing to take the breath test isn’t admissible evidence in court.
The inadmissibility of a refusal to take a breath test doesn’t change the administrative penalties that come with the refusal. Anyone who receives a Georgia driver’s license is provided the privilege to drive conditional upon providing a breath, blood, urine or another sample to determine if the person is driving under the influence.
The administrative penalty for refusing to take a chemical test when a police officer asks you to take one is a driver’s license suspension for at least one year. Interestingly, the implied consent law also applies to people with a hunting license because hunting under the influence is illegal in Georgia. A person can lose their hunting license for two years for refusing to take a chemical test.
Anyone facing a drunk driving charge in Georgia should ensure they know all their rights. Any rights that weren’t respected could play a role in their defense strategy. It’s best to get this set early in the case, so you aren’t trying to rush through it.