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Georgia DUI Implied Consent: Independent Test Issues


Always look for independent test issues in your DUI cases in Georgia. Cases interpreting Georgia DUI Implied Consent law actually take the statutory provisions seriously. This is highly unusual for appellate cases in the DUI area. Generally speaking, a statute looks like it may be protective of the rights of DUI defendants, then the court quickly interprets away any rights of DUI defendant. However, Georgia DUI Implied Consent law, particularly with regard to the right to an independent test, may be the one strong exception to that general rule.

Georgia DUI Implied Consent law provides important rights to those accused of DUI in Georgia. The right to an independent test after first submitting to the test (OR TESTS) requested by a law enforcement officer. Georgia DUI Implied Consent law is more expansive that the constitutional rights afforded to a suspect.


The state has the burden of showing compliance with the requirements of OCGA § 40-6-392(a)(3). In order to determine whether the failure to obtain an independent test requested by an accused is justified, “the trial court must decide if, under the totality of the circumstances, the officer made a reasonable effort to accommodate the accused.” The trial court may consider the following factors, among others:

(1) availability of or access to funds or resources to pay for the requested test; (2) a protracted delay in the giving of the test if the officer complies with the accused’s requests; (3) availability of police time and other resources; (4) location of requested facilities[; and] (5) opportunity and ability of accused to make arrangements personally for the testing.

State v. Howard, 283 Ga. App. 234, 236, 641 S.E.2d 225, 227 (2007).


Often times, lawyers simply do not recognize what fact pattern would make for a good independent test issue. Consider the Howard case below:

At the hearing on Howard’s motion in limine, Officer Dunn of the DeKalb County Police Department testified that, at 3:25 a.m. on February 24, 2006, he stopped a car driven by Howard after observing it swerve out of its lane. Howard had bloodshot, watery, and glassy eyes; his breath smelled of alcohol; and he told Dunn that he had had “a couple of drinks.” Dunn then asked him to perform several field sobriety tests and a preliminary breath test. When these tests indicated that Howard was under the influence of alcohol, Dunn placed him under arrest, read to him the implied consent notice, and asked him to take the state-administered breath test. Howard immediately asked for a blood or urine test instead, because he was under the mistaken impression that he had already taken the state breath test when he took the preliminary breath test at the scene. Dunn explained that, as soon as Howard had taken the state breath test, Dunn would take him to get an additional chemical test at Howard’s own expense. After some further questions, Howard agreed to take the state-administered breath test.

Immediately after submitting to the state breath test at the DeKalb County jail, Howard again requested an independent blood test. Howard testified that, during the discussion that followed this request, he was told by another police officer in Dunn’s presence that an independent blood test would cost about $400 to $500 and that this cost must be paid that night. Although Dunn could not recall what cost the other officer quoted to Howard, Dunn testified that it was “nothing that dramatic.” Howard testified that he had only $80 in his possession at the time. He asked if his father could meet him at the hospital to pay for the blood test; Dunn said no, citing security risks. Howard asked if his father could pay the hospital by credit card before Howard went to the hospital for the test; again Dunn said no, citing security risks. Howard asked if he could take the blood test and have his father come to the hospital afterward and pay by credit card; once again, Dunn said no, citing security risks. Howard testified that he was not permitted to use his cell phone to call for financial assistance; Dunn, on the other hand, testified that Howard was allowed to make two phone calls. Dunn did offer to take Howard to an ATM, but Howard did not have sufficient funds there to cover what he had been told was the cost of the test, and Dunn refused to allow him to obtain funds in any other way. The end result was that Dunn never took Howard to the hospital for the independent blood test he had requested. Howard, unable to obtain an independent test, finally agreed to take a second breath test on the other available state machine.

State v. Howard, 283 Ga. App. 234, 235-36, 641 S.E.2d 225, 226-27 (2007)


Joel was driving his car in Forsyth County shortly after midnight when a deputy with the Forsyth County Sheriff’s Office stopped him for failing to dim his headlights and failing to stop at a stop sign. The deputy questioned Joel briefly, then, upon detecting an odor of alcohol, radioed an officer with the DUI task force to come to the scene.

The second officer arrived and requested that Joel perform field sobriety tests, which Joel did. The officers then placed Joel in the patrol car and read him the implied consent notice. Joel initially indicated that he would not submit to a chemical test, but, after hearing the notice three times, he agreed to be tested. Joel took the state-administered chemical test at the sheriff’s office in Forsyth County, then asked to be taken to Northside Hospital for an independent test. Joel selected Northside Hospital because he was born there, his mother works there, he knows some members of the staff, and he trusts the hospital personnel.

The officer told Joel he was not going to take him “inside of metro Atlanta with four-three other hospitals in the immediate area.” In the officer’s opinion, the request to take Joel to Northside Hospital was unreasonable because

we had Baptist Medical Center right here that’s a full facility. North Fulton, which is a full facility and Gwinnett Medical in Northeast Georgia. With him being in my custody in the back of my car, I did not want to transport him all the way inside of metro Atlanta to an unsafe area that I did not-was not familiar with. I wasn’t going to jeopardize myself or him with three other hospitals in this area that were willing to draw his blood.

The officer said it would be “too dangerous for me to take him that far into metro Atlanta.” When asked to explain why he thought it would be dangerous, the officer replied that it was a long way, that they could have an accident, that he could get lost, and that something could happen to him or Joel. When the officer was asked where in metro Atlanta Northside Hospital was located, the officer remarked, “I have no idea.” The officer took Joel to North Fulton Hospital for his blood test.

The officer testified that it would have been reasonable to drive Joel to Baptist Medical Center, which is in Forsyth County; Gwinnett Medical Center, in Gwinnett County; Northeast Georgia Hospital, in Hall County; or North Fulton Hospital, in Fulton County. According to the officer, North Fulton Hospital is 10-15 minutes from the sheriff’s office, Gwinnett Medical Center is 45 minutes from the sheriff’s office, and the Hall County facility is 20 minutes from the sheriff’s office. The officer did not know how long it would take to drive from the sheriff’s office to Northside Hospital, although Joel estimated that it would be a 20- to 25-minute drive. On cross-examination, the officer estimated the travel time between the sheriff’s office and the intersection at which Joel testified that Northside Hospital is located to be 20 to 30 minutes. Although it is unclear from the transcript whether the officer actually told Joel that Gwinnett Medical Center was one of his options, the officer testified that that hospital would have been a reasonable choice because he is familiar with the area. He testified that the Forsyth, Gwinnett, North Fulton, and Hall facilities are all “in this area.” He added that he “never went inside-I don’t go inside the perimeter. I live on the other side of [Forsyth County].” According to the officer, time was not the issue-safety was. The officer added that Joel had the means to pay for the additional test and that the officer was under no pressure to complete the arrest quickly.

Joel v. State, 245 Ga. App. 750, 751-52, 538 S.E.2d 847, 848-49 (2000).

In Joel, the Court of Appeals rejected the officer’s limitation of the DUI defendant’s right to an independent simply because the independent testing facility requested was inside the perimeter of Atlanta:

In this case, the officer did not make a reasonable effort to accommodate Joel’s request to be taken to Northside Hospital for an independent test. As the officer admitted at the hearing, time was not an issue, since the requested hospital was no greater distance from the sheriff’s office than some of the hospitals which the officer thought would have been reasonable choices, and because the officer was not in any particular hurry to finish processing the arrest. Likewise, the fact that the requested facility was outside Forsyth County did not make the request unreasonable, since the officer testified that other hospitals located outside the county, including the one to which the officer drove Joel, would have been reasonable choices.6 And it is undisputed that Joel was able to pay for the test.

The officer’s sole basis for refusing to take Joel to a reasonably close facility of Joel’s own choosing is that he was unfamiliar with the area in which the hospital is located and, therefore, the request caused him safety concerns. His safety concerns are not supported by any specific evidence. There is nothing suggesting that the officer could not have readily found out the location of the requested hospital and gotten there without getting lost or having an accident. An officer’s unfamiliarity with the area is not, in and of itself, sufficient grounds to deny an accused’s request for an independent test by personnel of his own choosing. As this Court stated in State v. Hughes,7 the “of his own choosing” language in OCGA § 40-6-392(a)(3) is not superfluous, and the fact that the accused was given an additional test at a facility other than the one he selected does not demonstrate the state’s compliance with the statute.

By asking for the independent test, Joel invoked his right to have such a test done; this gave rise to the officer’s corresponding duty to make reasonable efforts to accommodate that request. That duty continued until it was determined that, despite reasonable effort, such a test could not be obtained.

The state has the burden of showing it complied with the requirements of OCGA § 40-6-392(a)(3).10 It has failed to meet this **850 burden. The trial court erred in ruling that the officer’s failure to obtain the requested test was justified and in denying Joel’s motion to exclude the results of the state-administered chemical test.

Joel v. State, 245 Ga. App. 750, 753, 538 S.E.2d 847, 849-50 (2000).

If you have a question regarding an independent test issue or Georgia DUI Implied Consent law generally, contact Ben Sessions of The Sessions Law Firm at (470) 225-7710.

NCDD National College for DUI Defense: D. Benjamin Sessions

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The Sessions Law Firm
3155 Roswell Rd., Ste. 220
Phone: 470-225-7710

About the Author

Ben Sessions, Attorney at Sessions Law Group
Ben Sessions

I work to provide exceptional service, attention, and results to each of my clients. Most of clients come to me because they are in a completely overwhelming situation. They need someone that will do more than address their legal problems.


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