What is the DUI Implied Consent Law?

In most states, once you have been arrested for DUI-DWI, the police officer making the arrest must inform you of specific rights under state law relating to your obligation to take a state-administered test of your blood, breath or urine, as well as other rights to refuse this testing.

Challenging Georgia implied consent law is one of the best ways to exclude your breath alcohol test result, blood test with a high BAC level, or (in some cases) a DUI refusal. Getting this damaging evidence off the table greatly increases your chances of a favorable case outcome. More than any other Atlanta DUI lawyer, criminal defense lawyer Bubba Head has more successes at excluding implied consent law evidence from DUI cases.

Many of Mr. Head’s winning challenges can be found in opinions from the Georgia Court of Appeals, after a trial judge denied the motion to suppress. Partner Larry Kohn helped write many of these appeals, especially in the 1990s, which was the “golden era” of DUI defense when exclusion of implied consent results was granted more easily.

In some states, the officer may also be obligated to advise you of any independent test rights that you may have under state law. In these states, failure to strictly comply with the law will cause the State’s test results to be excluded.

The practice among states varies regarding whether any formal advisement of your obligations and rights must be given by the officer. When it must be given, where it must be given, and what happens if you decline testing, covers the entire spectrum of likely legal challenges in your state.

These rights are commonly known as “implied consent” rights. In some states, no advisement is formalized by state law. In others, it is part of state statute. In states like Arizona and Wisconsin, mere refusal of a first lifetime offense DUI-DWI from a roadblock stop will authorize the police officer to draw blood by force, plus seek to take away your license for your refusal.

Of course, if you do refuse, in most states, this can be used against you by the prosecution at trial. Plus, you will likely then have your license suspended or revoked for a period of time as a result of having refused. In some states, a refusal can carry jail time or other penalties beyond a license suspension.

It is common for the implied consent warning to be tied to either your age or your possible status as a holder of a commercial driver’s license (CDL).

Your state may give you no option but to submit to a test, even resorting to physical force to extract blood or gather urine through a catheter.

Furthermore, states vary greatly in their allowance of an independent test of your own choosing. For example, Georgia will allow liberal accommodation of an independent test or tests, but only if you have first submitted to the state’s test.

A few courts, however, have ruled that restricting the right to an independent test to those who submit to police testing is a denial of due process and that persons who refuse chemical testing still have the right to an independent chemical test.

In states that require the officer’s strict compliance with reading a specific implied consent advisement, non-compliance by the officer will result in exclusion of the State’s test result. In some states (e.g., Georgia) even evidence of your “refusal to be tested” will be excluded if non-compliance with the strict rules controlling the implied consent advisement are not followed.

In other states, very loose rules exist regarding when and what must be told to you as a DUI-DWI suspect. Plus, many states place no obligation upon the police to transport you to a testing facility or otherwise accommodate a request for independent testing of your blood, breath or urine. If denied this important right, collect the names of all who denied you this opportunity to collect evidence, plus call “911” on a pay phone to ask the operator to assist you in obtaining your independent test.

If you were not read the correct implied consent warning at all, your attorney is likely to argue that you were denied a reasonable explanation of your implied consent testing options.

If you did not understand your legal rights, any action you took with regard to submitting to or declining the state’s chemical tests was not made with a full understanding of your options.

Your attorney may be able to get any unfavorable test results excluded from being introduced at trial. Without these test results showing a scientific measurement of either drugs and/or alcohol in your system at the time of the testing, the DUI-DWI charges against you may be dismissed or reduced to a lesser offense.