All About Implied Consent

In this blog, we’re going to break down what might be the most difficult question you’re asked when being arrested for DUI: Will you consent to testing of your blood and/or breath to determine your blood alcohol content?

In 2022, we published a blog explaining the Implied Consent law in Tennessee. We want to go deeper by unpacking the Implied Consent law of Georgia, as well as by exploring the practical application of these laws.

Implied Consent, GenerallyAll About Implied Consent

The concept of Implied Consent is that when you drive on the roads of a state, you give your consent in advance to submit to a chemical test of your bodily fluid to determine the concentration of alcohol (or other intoxicating substances) in your system. However, an officer compelling chemical testing must first establish probable cause to believe that you’ve committed an offense such as driving under the influence. All 50 states have some kind of implied consent law, which varies in details from state to state. The differences in these laws might seem miniscule on paper, but they create important contrasts in the application of the law.

Implied Consent Law in Tennessee

Tennessee’s Implied Consent law can be found in TCA Title 55, Chapter 10, Part Four. The law establishes that officers can invoke implied consent when there is probable cause to believe that the operator of a vehicle committed certain offenses, including DUI, Vehicular Assault, and Vehicular Homicide. But just because you’re considered to have already consented to testing, officers can’t just begin drawing your blood as soon as you’re arrested. Officers must ask first arrestees whether or not they’ll submit to testing. They also have to advise drivers of certain consequences for refusing. TCA 55-10-406 explains that,

“Any law enforcement officer who requests that the operator of a motor vehicle submit to breath tests, blood tests, or both tests, authorized pursuant to subsection (a), shall, prior to conducting the test, advise the operator that refusal to submit to the tests:

  1. Will result in the suspension by the court of the operator’s driver’s license; and
  2. May result, depending on the operator’s prior criminal history, in the operator being required to operate only a motor vehicle equipped with a functioning ignition interlock device if the operator is convicted of a violation of § 55-10-401, as described in 55-10-405.”

If you consent, the officer will move forward with chemical testing. This consent must not be given under duress or coercion, and must be specifically and intelligently given (State v. Berrios, 235 S.W.3d 99, 104 (Tenn. 2007)).

If you refuse, you will be charged with a violation of the Implied Consent law, which is considered an administrative issue. The punishment for this violation is an automatic suspension of your license for a period of one year. However, if you have a prior DUI conviction, the court may suspend your license for two years. If you end up being convicted of the present DUI, you may also be ordered to install an ignition interlock device in your car.

In most jurisdictions in Tennessee, officers will apply for a search warrant for your blood if you refuse. Because a search warrant does not require your consent, if a judge grants the warrant, the officer may then proceed to collect a sample of your blood.

How does this look in action?

We’ve seen officers give implied consent advisories in a number of ways in Tennessee. Sometimes, an officer will simply ask if a driver wants to consent to blood or breath testing, without explaining the potential repercussions for granting or refusing consent. Per TCA 55-10-406(d)(3), if an officer fails to advise a driver of the consequences of refusing to submit to chemical testing, the court will not have the authority to suspend their license or require them to install an ignition interlock device into their car.

The Supreme Court of Tennessee addressed potentially deficient Implied Consent advisories in State v. Collins, 166 S.W.3d 721 (Tenn. 2005). Ultimately, the court determined that while “the advisory statement made to a driver need not be specific,” it must be accurate and thus include the warnings laid out in the statute. As you can imagine, this still leaves a considerable amount of room for interpretation about what constitutes a sufficient Implied Consent advisory.

Implied Consent Law in Georgia

Georgia’s Implied Consent law can be found in O.C.G.A § 40-5-55. The law can be invoked if a person is arrested for DUI or is involved in an automobile accident involving serious injuries or fatalities. Chemical testing of the driver’s blood, breath, urine, or other bodily substance is allowed only when officers have reasonable grounds to believe that the driver was driving while under the influence of alcohol or drugs. Grimly, the law also provides that if the driver is dead or unconscious, officers can go ahead and administer tests, since these individuals have not technically revoked their implied consent to testing.

Here’s a major difference between the Implied Consent law in Tennessee and Georgia: in Georgia, officers must issue the Implied Consent advisory as it is written in the statute. The script goes like this (see O.C.G.A. 40-5-67.1):

“The State of Georgia has conditioned your privilege to drive upon the highways of this state upon your submission to state administered chemical tests of your blood, breath, urine, or other bodily substances for the purpose of determining if you are under the influence of alcohol or drugs. If you refuse this testing, your Georgia driver’s license or privilege to drive on the highways of this state will be suspended for a minimum period of one year. Your refusal to submit to blood or urine testing may be offered into evidence against you at trial. If you submit to testing and the results indicate an alcohol concentration of 0.08 grams or more, your Georgia driver’s license or privilege to drive on the highways of this state may be suspended for a minimum period of one year. After first submitting to the requested state tests, you are entitled to additional chemical tests of your blood, breath, urine, or other bodily substances at your own expense and from qualified personnel of your own choosing. Will you submit to the state administered chemical tests of your (designate which test)?”

Now, officers are allowed to switch up a few words here and there, but the substance of the advisory must be the same in order to count as an adequate notice of the Implied Consent law. For this reason, you’ll notice that many law enforcement officers in Georgia carry small cards in their uniforms that have the advisory written on them in full.

There’s yet another major difference between Tennessee and Georgia: in Georgia, if the driver refuses to consent to chemical testing, no test will be given. In this case, the state reserves the right to suspend the driver’s license for a period of 12 months in consequence for the refusal. Depending on if that driver has been convicted of DUI before, though, they may be able to apply for a provisional license so that they can still travel to essential locations (such as work and school) during the period of suspension.

A one-year suspension of your license is certainly intimidating. However, it is something that your attorney can fight against at an Administrative License Suspension hearing. If you do decide to refuse a chemical test in Georgia, be sure that you stay on top of the Administrative License Suspension protocol. After your arrest, you only have 30 days to request a hearing before your right to said hearing is considered waived. Upon suspending your license, the arresting officer should give you a notice of suspension that explains the hearing process, otherwise you’ll receive this notice in the mail from the Department of Driver’s Services.

If you do consent to chemical testing, your license will still be suspended if your BAC is over the legal limit of 0.08, but for a shorter period of time.

How does this look in action?

As we already mentioned, the wording of the Implied Consent advisory is more strict in Georgia than it is in Tennessee. Furthermore, officers are required to issue the advisory in a much shorter window of time in Georgia. In Thrasher v. State, 300 Ga.App 154, Georgia’s Court of Appeals ruled that an Implied Consent warning given more than 45 minutes after the driver was placed under arrest requires the exclusion of that driver’s blood test results. Indeed, the reading of the Implied Consent advisory must happen contemporaneously with the arrest. Because of this, we often see officers pulling out their Implied Consent cards the very moment a defendant is in handcuffs. If the officer that arrests you fails to give you the Implied Consent advisory within 45 minutes of your arrest, it is your lawyer’s duty to move the court to suppress the results of your chemical test.

Best & Brock is Here to Guide You Through It!

The Implied Consent statute is often confusing to people who don’t focus on law, and it’s difficult to make such a hard call when you’re already stressed because of an arrest or automobile accident. If you’re arrested for DUI or your blood is taken after a car crash, you’ll need the help of an experienced DUI attorney to help you fight your criminal charges and license suspension. Best & Brock’s criminal defense attorneys settle DUI cases in Tennessee and Georgia with strategy and skill. Reach out to us at (423) 829-1055 or by filling out our online contact form to set up a FREE consultation!