Georgia Implied Consent Law

One of the most popular questions I receive on any consultation is “Will my license be suspended?”

It is imperative to understand that there are two broad categories of license suspension to talk about. The first and most pressing type of license suspension following arrest is the administrative license suspension (also known as “ALS”). The administrative license suspension comes directly from the Georgia implied consent law, and usually is the first knot to unravel after a DUI arrest. The second broad category of license suspension is based on a criminal conviction for DUI, which if it comes to pass would usually come much later, after a full investigation by a DUI lawyer, and numerous court appearances. This second category is not discussed on this page, but is explored on the DUI Penalties in Georgia page.

Of special note, many general practice criminal lawyers still have on their website (to get cases through the door) that you only have 10-days to act, or something about a “10-day letter,” to appeal an officers decision to administratively suspend your license under the implied consent law. While that was the law for many years, it changed on July 1, 2017. Now, drivers who have had their license taken by an arresting officer have 30-days to appeal the officers decision to administratively suspend their license or Georgia driving privileges if the driver held an out-of-state license.

What is the implied consent law?

Georgia’s Implied Consent law can be found in two sections of the Official Code of Georgia Annotated (OCGA), OCGA sections 40-5-55, and 40-5-67.1. When a driver is arrested for DUI, the arresting officer is required to read one of three versions of a long droning paragraph immediately after arrest. The state is required to substantially comply with the requirements of the implied consent law, and if they don’t do that, your DUI lawyer should be able to get the test results (or test refusal ) thrown out.  The most common version of the notice Is for drivers over the age of 21 who were driving a noncommercial vehicle at the time of arrest. The second and third versions of the notice involve either drivers under the age of 21, or drivers operating a commercial vehicle at the time that they were arrested for DUI. For the full text of each version of the implied consent notice, scroll to the bottom of this page.

If an officer decides to administratively suspend your license, they will keep your license, and issue a piece of paper called “DDS Form 1205.” KEEP THAT PIECE OF PAPER WITH YOU while you are driving–it acts as your driver’s license until a formal decision is made on whether or not your license will be administratively suspended.

How do you use the implied consent law to fight the case?

Just by reading the above-paragraph you can already see where some potential issues are in a seemingly “unwinnable” case. The officer has to properly arrest you before the notice can be read, so naturally, one question is whether there was reasonable articulable suspicion for the traffic stop. The follow up, then is whether there was probable cause for arrest. Beyond that, did the arresting officer read the notice or did someone else? Was the notice read before or after arrest? If it was read after arrest, was it read immediately after arrest? If not immediate, is there a valid reason for the delay? Was the correct implied consent notice read (remember the three versions)? Did the notice, as read, substantially comply with the statute? This list of questions is just the tip of the iceberg that your DUI Lawyer should be ready to explore with you on-the-spot during a free consultation. The Law Office of Adam D. Brown is ready 24/7.

What is a DUI Refusal?

You will notice that at the end of the implied consent notice there is a question. The question asks if you will submit to the requested State test. You are allowed to answer any way you see fit, including silence. On scene, however, arresting officers will almost always demand a “yes or no” response. That is incorrect. You are allowed to stay silent, and if you do, the officer is allowed to construe that as a refusal. Boiling this down, there are two possible paths to take. The first is if you agree to take the test, and the second is the refusal pathway.

A DUI refusal case is special, in that it makes the criminal defense case a bit “easier” to win, but it has the potential to bit you rather hard on the front-end with a 1-year administrative license suspension with no eligibility for a limited permit during the year.

To explain the potential administrative license consequences for a DUI refusal further, you need to decide in the first 30 days which of the three branches you want to take.

  • First, if you fail to act within 30-days of your arrest, then on the 46th day following arrest, your license will be suspended for 1-year. There is no limited driving permit available, and if you make the foolish choice to drive while your license is suspended, you will go to jail, and you will receive additional license suspension time. Please do not fail to act.
  • Second, you may choose to appeal the officer’s decision to suspend your license. There is a $150 filing fee to appeal. If you are undecided on hiring a DUI lawyer, call me, and I will guide you through the simple filing process free-of-charge to protect your rights. That will generally buy you two to three months before any potential administrative license suspension takes effect, because a hearing will need to be scheduled.
  • As of July 1, 2017, there is a third option to avoid the 1-year “hard” license suspension. It is rare that this is the best course of action, but it allows you to continue driving to the most important  activities of daily living–mainly just work/school, kids school, and medical appointments. If you install an ignition interlock device on your car (~$75 installation cost) and pay for 12 months of ignition interlock monitoring (~$75 per month), you will be allowed to drive on an “ignition interlock limited driving permit.” There are a few catches, though. First, you have to be quick! This has to be installed within 30 days of your arrest, and you must show up to a DDS location with the device installed and an application. Second, in order to get this type of permit, you have to give up your administrative appeal rights. Third, if you beat the criminal DUI case, you STILL have to complete the 12 months on the interlock device. If you are considering this potential path, PLEASE call to discuss to make sure that the decision you are making is the best decision for you.
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