I regularly consult with and engage in the representation of clients that are confused as to why they are charged with a refusal of state-administered test when they did not explicitly state to the arresting officer that they would not take the requested blood, breath, or urine test. When an officer reads the Implied Consent Notice and requests a blood, breath, or urine test, most people have no clue what their rights are or the implications of their choice. This lack of understanding is a common and rational response. Georgia's Implied Consent Notice is convoluted and confusing. Furthermore, if the Implied Consent Notice is read in a timely manner, the notice will be read immediately after arrest, and for most people, this is one of the most anxiety-ridden moments of their life. Asking a person to reach a reasoned and voluntary decision under these circumstances is not a reasonable request.
Nonetheless, Georgia DUI law requires each and every person arrested for a DUI to make a decision as to whether they will submit to the requested state-administered test after their arrest. Cases interpreting Georgia's Implied Consent Notice have consistently held that the failure of a person to provide an answer to the officer's request for a test of their blood, breath, or urine may be deemed a refusal. If a person arrested for a DUI responds that they simply do not understand what the officer is asking of them, this may be deemed a refusal.
What if a person arrested for DUI states that they will not answer the officer's request for a blood, breath, or urine test until they speak with their lawyer? Georgia case law interpreting the rights of suspects after the Implied Consent Notice is abysmal on this issue. Georgia courts have repeatedly held that a suspect does not have the right to consult with an attorney prior to deciding whether to “consent” to the state-administered test. Again, if a person states that they cannot make a decision prior to consulting with a lawyer, under existing Georgia DUI law, this may be deemed a refusal.
In a later post, I will address the circumstances under which a person may “rescind” their prior refusal or failure to give a clear answer as to whether they will submit to the state-administered test requested by the arresting officer.
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