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Basic Implied Consent Objections to Admissibility of a Blood, Breath, or Urine Test in a Georgia DUI Case

The implied consent issues identified below are by no means all-inclusive. Further, the cases cited here are those which I have found to be frequently useful.


[B]ased on the plain, unambiguous wording of Georgia’s implied consent statutes, we must find, employing the standard rules of statutory construction, that a suspect who is not involved in a traffic accident resulting in serious injuries or fatalities must be under arrest before implied consent rights are read to him.

Hough v. State, 279 Ga. 711, 620 S.E.2d 380 (2005) (emphasis added).


[U]nder ordinary circumstances, where advice is not given at the time of arrest, or at a time as close in proximity to the instant of arrest as the circumstances of the individual case might warrant, the results of the state-administered test will not be admissible at trial to show that the accused was driving under the influence of alcohol or drugs.

Perano v. State, 250 Ga. 704, 708 (1983).

Delay in the advisement of the implied consent warning is justified only if there is an indication that the defendant is too intoxicated to understand the warnings or too emotionally distraught, or that the exigencies of the officer’s duties warrant delay, or the officer is unaware that the defendant will be charged with violating O.C.G.A. § 40-6-391. See e.g.Clapsaddle v. State, 208 Ga.App. 840, 842 (1993); State v. Fleming, 202 Ga.App. 774, 776, (1992).

For example, in Brown v. State, 265 Ga. App. 129 (2004), a four minute and forty-seven second delay following arrest was warranted only because the officer was required to take several precautionary measures prior to advising the defendant of his implied consent rights, including ensuring that the defendant’s motorcycle contained no weapons, ensuring bystanders nearby posed no threat, and searching for the defendant’s identification.  Brown illustrates the necessity of strict compliance, as even a delay of less than five minutes following arrest must be justified by circumstances warranting a delay.


If the defendant submitted to the state-administered test and the officer overstated the legal limit, the results are subject to exclusion. Kitchens v. State, 258 Ga. App. 411, 574 S.E.2d 451 (2002).

If the defendant submitted to the state-administered test and the officer understated the legal limit, the results are not subject to exclusion. Mauer v. State, 240 Ga. App. 145, 525 S.E.2d 104 (1999).

Coercion to Submit to the Breath Test: “Blow Below and You Go Home”

May an officer induce a defendant to rescind a prior refusal by stating that if he blows below the legal, he will be permitted to leave? No, seeState v. Roswell, 299 Ga. App. 238, 682 S.E. 2d 343 (2009). Be prepared to contrast Rowell with Economos v. State, 298 Ga. App.561, 680 S.E. 2d 591 (2009)(an officer’s statement that in order to keep your license, you have to take the state administered test was not misleading information that confused and the defendant into taking the state administered test).


A defendant may initially refuse the state-administered test and later rescind the refusal. State v. Highsmith, 190 Ga.App. 838, 380 S.E.2d 272 (1989).

What are the circumstances in which a defendant will be deemed to have made an effective rescission of a refusal? See, Department of Public Safety v. Seay, 206 Ga. App. 71, 424 S.E.2d 301 (1992), citing, Standish v. Dept. of Revenue, Motor Vehicle Div., 235 Kan. 900, 683 P.2d 1276, 1280 (1984):

A subsequent consent after a refusal to take a chemical test must be made:

(1) within a very short and reasonable time after the prior first refusal;

(2) when a test administered upon the subsequent consent would still be accurate;

(3) when testing equipment is still readily available;

(4) when honoring the request would result in no substantial inconvenience or expense to the police; and

(5) when the individual requesting the test has been in the custody of the arresting officer and under observation for the whole time since arrest.

Statements Regarding Out-of-State License Being Suspended

Georgia law clearly establishes that when a person that possesses out-of-state license is given incorrect information regarding the effect of a refusal of the state-administered test and the defendant subsequently submits to the state-administered test, the results of the test should be suppressed.  Kitchens v. State, 258 Ga. App. 411, 574 S.E.2d 451 (2002)(the trial court erred in failing to exclude the results of the state-administered breath test where the officer told an Alabama driver’s license hold that if she did not submit to the state-administered test, your license is going to be suspended).  See alsoState v. Coleman, 216 Ga. App. 598, 599, 455 S.E.2d 604 (1995)(suppression of state-administered test required where an out-of-state driver was wrongly told that he would lose his driver’s license if he refused testing).

In addressing this issue, the Court in Deckard v. State, 210 Ga. App. 421, 423, 436 S.E.2d 536 (1993), stated, “[s]ince the consent was based at least in part on deceptively misleading information concerning penalty for refusal, which the State was unauthorized to implement, [defendant] was deprived of making an informed choice under the Implied Consent Statute.  Accordingly, the test results were rendered inadmissible.’”  Deckard v. State, 210 Ga. App. 421, 423, 436 S.E.2d 536 (1993).


 “O.C.G.A. § 40-6-392(a)(3) gives one accused of driving under the influence the right to ‘have a…qualified person of his own choosing administer a chemical test or tests in addition to any administered at the direction of a law enforcement officer.’ (Emphasis supplied.) ‘There can be no question that by judicial interpretation of [O.C.G.A. § 40-6-392] the results of an intoximeter (breath) test which is taken in violation of the protections afforded by [that section] may not be used in evidenceagainst the defendant.’”

State v. Hughes, 181 Ga. App. 464, 352 S.E.2d 643, 644 (1987), quoting State v. Johnston, 160 Ga. App. 71, 73, 286 S.E.2d 47 (1981), aff’d on other grounds, 249 Ga. 413, 291 S.E.2d 543 (1982).

OCGA § 40-6-392(a)(3) provides that a person who is accused of DUI and who undergoes a chemical test at the request of a law enforcement officer has the right to have a qualified person of her own choosing administer an additional test. Law enforcement officers have a corresponding duty not to refuse or fail to allow an accused to exercise that right. ‘If an individual requests an independent test but is unable to obtain it, the results of the State-administered test cannot be used by the State as evidence against [her] unless the failure to obtain the test is justified.’

Ladow v. State, 256 Ga. App. 726, 728, 569 S.E.2d 572 (2002)(citations omitted).

The statutory scheme which requires that a DUI suspect be provided with the opportunity to obtain an independent test is intended to “safeguard the Defendant’s equal protection and due process rights to gather exculpatory evidence, i.e., an independent test.” Allen v. State, 229 Ga. App. 435, 438, 494 S.E.2d 229 (1997).

The purpose of providing of a suspect with the right to independent test pursuant to O.C.G.A. § 40-6-392(a)(3) “helps dissipate any feelings the DUI suspect may have of collusion, fraud, or inaccuracy in the [s]tate-administered testing. It also enables the suspect to obtain independent evidence to refute a possible erroneous [s]tate test result.” Schlanger v. State, 290 Ga. App. 407, 659 S.E.2d 823 (2008), citing OCGA § 40-6-392(a)(3).


May an independent test be requested prior to implied consent advisement and prior to arrest? Yes, see McGinn v. State, 268 Ga. App. 450, 602 S.E.2d 209 (2004).

Prior to the implied consent warning being read, the defendant stated that he had “heard all that” and requested a blood test. The defendant reiterated his request during the advisement. The officer requests a blood test and the defendant consents to the test. Was this a sufficient independent test request? Yes, see Ladow v. State, 256 Ga. App. 726, 569 S.E.2d 572 (2002).

“An accused’s right to have an additional, independent chemical test or tests administered is invoked by some statement that reasonably could be construed, in light of the circumstances, to be an expression of a desire for such test.” Ladow v. State, 256 Ga. App. 726, 728, 569 S.E.2d 572 (2002)(citations omitted).


The defendant receives an additional test at a hospital, but he did not receive the test at the hospital he wanted. The arresting agency had a policy which designated where independent tests were to be provided. Is this a sufficient accommodation of an independent test? No, see State v. Hughes, 181 Ga. App. 464, 352 S.E.2d 643 (1987).

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Ben Sessions

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