The Importance of the Implied Consent Notice

Georgia, like most states, has an implied consent statute. This statute required drivers who have been arrested on suspicion of driving under the influence of either drugs or alcohol to submit to a chemical test in order to determine if the driver was, in fact, impaired. If a driver refuses to comply and submit to testing, there can be consequences for that refusal. In Georgia, the penalty for refusal is a one-year mandatory license suspicion.

Law enforcement is required to read an implied consent notice to drivers before asking them to submit to a chemical test. Typically, the test requested is a blood or breath test, however, drivers can also be asked to take a urine test. The implied consent notice is supposed to give a driver adequate warning about the consequences of refusing to take the chemical test.

While the notice does not need to be read verbatim, law enforcement does need to adequately convey to a driver the consequences of refusal. The Georgia Court of Appeals recently addressed what happens when a law enforcement officer misstates the penalty for refusing a chemical test in the case of State v. Stroud.

The Difference a Word can Make in Your Georgia DUI Case

The standard implied consent notice -- according to Georgia Code § 40-5-67.1 -- reads as follows with emphasis added:

Georgia law requires you to submit 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 the required testing may be offered into evidence against you at trial.

In Stroud, the officer misstated the notice, stating that the defendant's license MAY be suspended instead of WILL be suspended. Prior to trial, Stroud moved to suppress evidence of his refusal. (As a note, refusal can be used as evidence against a driver at trial.) The trial court granted the motion because it found that

the implied consent notice given by the arresting officer was not substantially accurate so as to allow Stroud to make an informed decision about whether to consent to the testing.

The State subsequently appealed.

What did the Court of Appeals say about "may" versus "will"?

After reviewing the case, the Court of Appeals agreed with the trial court. The court stated that "the officer's error in giving the implied consent notice misled Stroud as to a serious consequence of refusing to submit to testing" as, under Georgia law, refusal leads to a mandatory license suspension. The court continued,

the arresting officer's statement to Stroud that his license ‘may be suspended,' instead of ‘will be suspended,' altered the substance of the implied consent notice by changing the mandatory suspension into a mere permissive possibility.

The misstated notice “impaired Stroud's ability to make an informed decision about whether to submit to testing.”

How does this case impact your DUI case in Georgia?

While this ruling is helpful to Stroud and his case, it is important to note that this ruling is physical precedent only. This means that while it can be used as persuasive authority, it is not binding precedent. Therefore, it may not have an impact on your case but under the right circumstances and the right Georgia DUI attorney, it could have considerable persuasive power.

If you or someone you know has been arrested and charged with driving under the influence, there are numerous defenses that can be raised, one of which is the failure to properly read the implied consent notice. An experienced and knowledgeable Georgia DUI Defense attorney, like those at the Law Offices of Richard S. Lawson, can assist in determining what defenses are applicable in your case. Contact our office today for a free case evaluation by calling (404) 816-4440, or reach out to us online by filling out the contact form available on our website.