2021 Georgia Code
Title 40 - Motor Vehicles and Traffic
Chapter 6 - Uniform Rules of the Road
Article 15 - Serious Traffic Offenses
§ 40-6-392. Chemical Tests for Alcohol or Drugs

1. Upon the trial of any civil or criminal action or proceeding arising out of acts alleged to have been committed by any person in violation of Code Section 40-6-391, evidence of the amount of alcohol or drug in a person's blood, urine, breath, or other bodily substance at the alleged time, as determined by a chemical analysis of the person's blood, urine, breath, or other bodily substance shall be admissible. Where such a chemical test is made, the following provisions shall apply:
   1. 1. Chemical analysis of the person's blood, urine, breath, or other bodily substance, to be considered valid under this Code section, shall have been performed according to methods approved by the Division of Forensic Sciences of the Georgia Bureau of Investigation on a machine which was operated with all its electronic and operating components prescribed by its manufacturer properly attached and in good working order and by an individual possessing a valid permit issued by the Division of Forensic Sciences for this purpose. The Division of Forensic Sciences of the Georgia Bureau of Investigation shall approve satisfactory techniques or methods to ascertain the qualifications and competence of individuals to conduct analyses and to issue permits, along with requirements for properly operating and maintaining any testing instruments, and to issue certificates certifying that instruments have met those requirements, which certificates and permits shall be subject to termination or revocation at the discretion of the Division of Forensic Sciences.
      2. In all cases where the arrest is made on or after January 1, 1995, and the state selects breath testing, two sequential breath samples shall be requested for the testing of alcohol concentration. For either or both of these sequential samples to be admissible in the state's or plaintiff's case-in-chief, the readings shall not differ from each other by an alcohol concentration of greater than 0.020 grams and the lower of the two results shall be determinative for accusation and indictment purposes and administrative license suspension purposes. No more than two sequential series of a total of two adequate breath samples each shall be requested by the state; provided, however, that after an initial test in which the instrument indicates an adequate breath sample was given for analysis, any subsequent refusal to give additional breath samples shall not be construed as a refusal for purposes of suspension of a driver's license under Code Sections 40-5-55 and 40-5-67.1. Notwithstanding the above, a refusal to give an adequate sample or samples on any subsequent breath, blood, urine, or other bodily substance test shall not affect the admissibility of the results of any prior samples. An adequate breath sample shall mean a breath sample sufficient to cause the breath-testing instrument to produce a printed alcohol concentration analysis.
   2. When a person shall undergo a chemical test at the request of a law enforcement officer, only a physician, registered nurse, laboratory technician, emergency medical technician, or other qualified person may withdraw blood for the purpose of determining the alcoholic content therein, provided that this limitation shall not apply to the taking of breath or urine specimens. No physician, registered nurse, or other qualified person or employer thereof shall incur any civil or criminal liability as a result of the medically proper obtaining of such blood specimens when requested in writing by a law enforcement officer;
   3. The person tested may have a physician or a qualified technician, chemist, registered nurse, or other 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. The justifiable failure or inability to obtain an additional test shall not preclude the admission of evidence relating to the test or tests taken at the direction of a law enforcement officer; and
   4. Upon the request of the person who shall submit to a chemical test or tests at the request of a law enforcement officer, full information concerning the test or tests shall be made available to him or his attorney. The arresting officer at the time of arrest shall advise the person arrested of his rights to a chemical test or tests according to this Code section.
2. Except as provided in subsection (c) of this Code section, upon the trial of any civil or criminal action or proceeding arising out of acts alleged to have been committed by any person in violation of Code Section 40-6-391, the amount of alcohol in the person's blood at the time alleged, as shown by chemical analysis of the person's blood, urine, breath, or other bodily substance, may give rise to inferences as follows:
   1. If there was at that time an alcohol concentration of 0.05 grams or less, the trier of fact in its discretion may infer therefrom that the person was not under the influence of alcohol, as prohibited by paragraphs (1) and (4) of subsection (a) of Code Section 40-6-391; or
   2. If there was at that time an alcohol concentration in excess of 0.05 grams but less than 0.08 grams, such fact shall not give rise to any inference that the person was or was not under the influence of alcohol, as prohibited by paragraphs (1) and (4) of subsection (a) of Code Section 40-6-391, but such fact may be considered by the trier of fact with other competent evidence in determining whether the person was under the influence of alcohol, as prohibited by paragraphs (1) and (4) of subsection (a) of Code Section 40-6-391.
3. 1. In any civil or criminal action or proceeding arising out of acts alleged to have been committed in violation of paragraph (5) of subsection (a) of Code Section 40-6-391, if there was at that time or within three hours after driving or being in actual physical control of a moving vehicle from alcohol consumed before such driving or being in actual physical control ended an alcohol concentration of 0.08 or more grams in the person's blood, breath, or urine, the person shall be in violation of paragraph (5) of subsection (a) of Code Section 40-6-391.
   2. In any civil or criminal action or proceeding arising out of acts alleged to have been committed by any person in violation of subsection (i) of Code Section 40-6-391, if there was at that time or within three hours after driving or being in actual physical control of a moving vehicle from alcohol consumed before such driving or being in actual physical control ended an alcohol concentration of 0.04 grams or more in the person's blood, breath, or urine, the person shall be in violation of subsection (i) of Code Section 40-6-391.
   3. In any civil or criminal action or proceeding arising out of acts alleged to have been committed by any person in violation of subsection (k) of Code Section 40-6-391, if there was at that time or within three hours after driving or being in actual physical control of a moving vehicle from alcohol consumed before such driving or being in actual physical control ended an alcohol concentration of 0.02 grams or more in the person's blood, breath, or urine, the person shall be in violation of subsection (k) of Code Section 40-6-391.
4. In any criminal trial, the refusal of the defendant to permit a chemical analysis to be made of his blood, breath, urine, or other bodily substance at the time of his arrest shall be admissible in evidence against him.
5. 1. A certification by the office of the Secretary of State or by the Department of Public Health that a person who drew blood was a licensed or certified physician, physician assistant, registered nurse, practical nurse, medical technologist, medical laboratory technician, or phlebotomist at the time the blood was drawn;
   2. Testimony, under oath, of the blood drawer; or
   3. Testimony, under oath, of the blood drawer's supervisor or medical records custodian that the blood drawer was properly trained and authorized to draw blood as an employee of the medical facility or employer

      shall be admissible into evidence for the purpose of establishing that such person was qualified to draw blood as required by this Code section.

(f) Each time an approved breath-testing instrument is inspected, the inspector shall prepare a certificate which shall be signed under oath by the inspector and which shall include the following language:

"This breath-testing instrument (serial no. ______________) was thoroughly inspected, tested, and standardized by the undersigned on (date ______________) and all of its electronic and operating components prescribed by its manufacturer are properly attached and are in good working order." When properly prepared and executed, as prescribed in this subsection, the certificate shall, notwithstanding any other provision of law, be self-authenticating, shall be admissible in any court of law, and shall satisfy the pertinent requirements of paragraph (1) of subsection (a) of this Code section and subparagraph (g)(2)(F) of Code Section 40-5-67.1.

(Ga. L. 1953, Nov.-Dec. Sess., p. 556, § 47; Ga. L. 1968, p. 448, §§ 1, 2; Ga. L. 1974, p. 562, §§ 1, 2; Code 1933, § 68A-902.1, enacted by Ga. L. 1974, p. 633, § 1; Ga. L. 1975, p. 1008, § 3; Ga. L. 1977, p. 1036, § 1; Ga. L. 1983, p. 1000, § 14; Ga. L. 1988, p. 1893, §§ 3, 5; Ga. L. 1990, p. 2048, § 5; Ga. L. 1991, p. 1886, § 10; Ga. L. 1992, p. 2564, § 13; Ga. L. 1994, p. 1600, § 10; Ga. L. 1995, p. 1160, § 4; Ga. L. 1997, p. 143, § 40; Ga. L. 1997, p. 760, § 25; Ga. L. 2001, p. 208, § 1-6; Ga. L. 2009, p. 453, § 1-4/HB 228; Ga. L. 2009, p. 859, § 3/HB 509; Ga. L. 2011, p. 705, § 6-3/HB 214.)

- Obtaining of blood sample to test for presence of intoxicating substances in instances where person, as result of casualty or other ailment is unable to give consent to taking of sample, § 45-16-46.

Administering tests to persons charged with navigating vessels while intoxicated, § 52-7-12.

Implied Consent, Official Compilation of the Rules and Regulations of the State of Georgia, Georgia Bureau of Investigation, Chapter 92-3.

- Pursuant to Code Section 28-9-5, in 2001, paragraphs (c)(.1), (c)(1), and (c)(2) were redesignated as paragraphs (c)(1), (c)(2), and (c)(3), respectively.

- Ga. L. 1994, p. 1600, § 11, not codified by the General Assembly, provides that the provisions of the Act shall apply only to cases arising out of arrests occurring on or after January 1, 1995, except that the provisions amending subsection (a) of Code Section 40-6-391.1, restricting the acceptance of a plea of nolo contendere to a charge of violating Code Section 40-6-391, and the provisions amending subsection (c) of Code Section 40-6-391, changing the criminal penalties for violations of the section, shall become effective July 1, 1994, and except that the provisions amending subsection (g) of Code Section 40-5-67.1, relating to the time for requesting a hearing on an administrative suspension, the stay of a suspension pending such hearing, and the early termination of an administrative suspension under certain conditions shall apply to cases pending on July 1, 1994.

Ga. L. 1995, p. 1160, § 5, not codified by the General Assembly, provides that the Act shall apply to all cases pending at the time of its approval by the Governor or its becoming law without such approval, except that the provisions regarding the requirement for two breath samples set forth in subparagraph (a)(1)(B) of Code Section 40-6-392 shall not apply to arrest made prior to January 1, 1995.

Ga. L. 1997, p. 760, § 1, not codified by the General Assembly, provides: "This Act shall be known and may be cited as the 'Teen-age and Adult Driver Responsibility Act'."

Ga. L. 1997, p. 760, § 27, not codified by the General Assembly, provides that the amendment made by the Act to this Code section shall apply to offenses committed on or after July 1, 1997, and shall not apply to offenses committed prior to that date.

- For article, "Challenges to Humanitarian Legal Approaches for Eliminating the Hazards of Drunk Alcoholic Drivers," see 4 Ga. L. Rev. 251 (1970). For article surveying judicial developments in Georgia criminal law, see 31 Mercer L. Rev. 59 (1979). For article surveying Georgia cases in the area of evidence from June 1979 through May 1980, see 32 Mercer L. Rev. 63 (1980). For article surveying developments in Georgia workers' compensation law from mid-1980 through mid-1981, see 33 Mercer L. Rev. 323 (1981). For article surveying law of evidence in 1984-1985, see 37 Mercer L. Rev. 249 (1985). For annual survey of the law of evidence, see 38 Mercer L. Rev. 215 (1986). For article commenting on the 1997 amendment of this Code section, see 14 Ga. St. U.L. Rev. 203 (1997). For annual survey article discussing developments in the law of evidence, see 51 Mercer L. Rev. 279 (1999). For article, "The Harper Standard and the Alcosensor: The Road Not Traveled," see 6 Ga. St. B.J. 8 (2000). For survey article on criminal law and procedure for the period from June 1, 2002 through May 31, 2003, see 55 Mercer L. Rev. 117 (2003). For annual survey of criminal law, see 57 Mercer L. Rev. 113 (2005). For annual survey of evidence law, see 58 Mercer L. Rev. 151 (2006). For article on the 2011 amendment of this Code section, see 28 Ga. St. U.L. Rev. 147 (2011). For annual survey on criminal law, see 71 Mercer L. Rev. 69 (2019). For note discussing scientific basis of blood classification and use of blood tests as evidence, see 16 Mercer L. Rev. 306 (1964). For note on the 1991 amendment of this Code section, see 8 Ga. St. U.L. Rev. 129 (1992). For note on the 1992 amendment of this Code section, see 9 Ga. St. U.L. Rev. 298 (1992). For note, "The Final Patient Privacy Regulations Under the Health Insurance Portability and Accountability Act - Promoting Patient Privacy or Public Confusion?," see 37 Ga. L. Rev. 723 (2003). For note, "Rodriguez v. State: Addressing Georgia's Implied Consent Requirements for Non-English- Speaking Drivers," see 54 Mercer L. Rev. 1253 (2003). For comment on Flournoy v. State, 106 Ga. App. 756, 128 S.E.2d 528 (1962), see 14 Mercer L. Rev. 442 (1963). For comment, "Is There a Georgia Supreme Court, Problem? Analyzing the Georgia Supreme Court's New Peculiar Approach Towards Breathalyzers and Implied Consent Law," see 71 Mercer L. Rev. 393 (2019).

ANALYSIS

• General Consideration
• Constitutionality
• Performance of Tests
• Admissibility of Results
• Judicial Proceedings
• Jury Instructions

OPINIONS OF THE ATTORNEY GENERAL

Editor's notes.

- In light of the similarity of the statutory provisions, opinions under former Code 1933, § 68-1625.1, are included in the annotations for this Code section.

- Provisions of O.C.G.A. § 40-6-392 which merely provide new trial procedures may be applied to all cases tried on or after September 1, 1983, regardless of when the violations occurred. All other provisions can be applied only to defendants whose alleged illegal conduct occurred on or after September 1, 1983. 1983 Op. Att'y Gen. No. U83-52.

In context of former Code 1933, § 64B-306 (see now O.C.G.A. § 40-5-55), driver has no election of chemical test to be administered. 1977 Op. Att'y Gen. No. 77-21.

Driver must be informed of the driver's right to an additional test so that the driver may challenge the accuracy of the chemical test administered by the state. 1977 Op. Att'y Gen. No. 77-21.

Responsibility of obtaining the additional tests rests with the driver. 1977 Op. Att'y Gen. No. 77-21.

- It is only with regard to the independent or additional test that the driver may designate the chemical test to be administered. 1977 Op. Att'y Gen. No. 77-21.

For legal status and effect of alcolyzer test, see 1972 Op. Att'y Gen. No. 72-46 (rendered under former Code 1933, § 68-1625.1).

- Evidence of the amount of alcohol or drug in the tested person's blood is admissible in any civil or criminal action arising out of the acts alleged to have been committed while the person was driving under the influence of alcohol or other drugs. 1976 Op. Att'y Gen. No. 76-11.

- If the person given a blood alcohol test requests the results of the test, then a copy of the blood-alcohol report should be given to that person or their attorney; copies of blood-alcohol reports should not be distributed under any other circumstances unless a subpoena is issued from a court of competent jurisdiction. 1976 Op. Att'y Gen. No. 76-11.

RESEARCH REFERENCES

Am. Jur. 2d.

- 7A Am. Jur. 2d, Automobiles and Highway Traffic, § 350 et seq. 8 Am. Jur. 2d, Automobiles and Highway Traffic, § 955 et seq.

Proof and Disproof of Alcohol-Induced Driving Impairment Through Breath Alcohol Testing, 4 POF3d 229.

Proof and Disproof of Alcohol-Induced Driving Impairment Through Evidence of Observable Intoxication and Coordination Testing, 9 POF3d 459.

The Impaired Driver - Ascertaining Physical Condition, 4 Am. Jur. Trials 615.

Defense on Charge of Driving While Intoxicated, 19 Am. Jur. Trials 123.

Failure to Protect Public From an Intoxicated Driver, 34 Am. Jur. Trials 499.

Driving Under the Influence: Tactical Considerations in Sobriety Checkpoint Cases, 59 Am. Jur. Trials 79.

Trial Defenses to a Breath Test Score, 70 Am. Jur. Trials 1.

Litigating a Driving While Intoxicated Case, 76 Am. Jur. Trials 213.

- 61A C.J.S., Motor Vehicles, §§ 1592, 1597, 1607.

- Driving automobile while intoxicated as a substantive criminal offense, 42 A.L.R. 1498; 49 A.L.R. 1392; 68 A.L.R. 1356; 142 A.L.R. 555.

Admissibility and weight of evidence based on scientific test for intoxication or presence of alcohol in system, 127 A.L.R. 1513; 159 A.L.R. 209.

Degree or nature of intoxication for purposes of statute or ordinance making it a criminal offense to operate an automobile while in that condition, 142 A.L.R. 555.

Requiring submission to physical examination or test as violation of constitutional rights, 164 A.L.R. 967; 25 A.L.R.2d 1407.

Validity of legislation creating presumption of intoxication or the like from presence of specified percentage of alcohol in blood, 46 A.L.R.2d 1176.

Qualification as expert to testify as to findings or results of scientific test to determine alcoholic content of blood, 77 A.L.R.2d 971.

Construction and application of statutes creating presumption or other inference of intoxication from specified percentages of alcohol present in system, 16 A.L.R.3d 748.

Admissibility in criminal case of blood alcohol test where blood was taken from unconscious driver, 72 A.L.R.3d 325.

Driving while intoxicated: duty of law enforcement officer to offer suspect chemical sobriety test under implied consent law, 95 A.L.R.3d 710.

Necessity and sufficiency of proof that tests of blood alcohol concentration were conducted in conformance with prescribed methods, 96 A.L.R.3d 745.

Request before submitting to chemical sobriety test to communicate with counsel as refusal to take test, 97 A.L.R.3d 852.

Request for prior administration of additional test as constituting refusal to submit to chemical sobriety test under implied consent law, 98 A.L.R.3d 572.

Evidence of automobile passenger's blood-alcohol level as admissible in support of defense that passenger was contributorily negligent or assumed risk of automobile accident, 5 A.L.R.4th 1194.

Admissibility in criminal case of blood-alcohol test where blood was taken despite defendant's objections or refusal to submit to test, 14 A.L.R.4th 690.

Admissibility in criminal case of evidence that accused refused to take test of intoxication, 26 A.L.R.4th 1112.

Drunk driving: Motorist's right to private sobriety test, 45 A.L.R.4th 11.

Validity, construction, and application of statutes directly proscribing driving with blood-alcohol level in excess of established percentage, 54 A.L.R.4th 149.

Sufficiency of showing of physical inability to take tests for driving while intoxicated to justify refusal, 68 A.L.R.4th 776.

Challenges to use of breath tests for drunk drivers based on claim that partition or conversion ratio between measured breath alcohol and actual blood alcohol is inaccurate, 90 A.L.R.4th 155.

Driving while intoxicated: subsequent consent to sobriety test as affecting initial refusal, 28 A.L.R.5th 459.

Authentication of blood sample taken from human body for purposes of determining blood alcohol content, 76 A.L.R.5th 1.

Authentication of organic nonblood specimen taken from human body for purposes of analysis, 78 A.L.R.5th 1.

Admissibility and sufficiency of extrapolation evidence in DUI prosecutions, 119 A.L.R.5th 379.

Driving While Intoxicated: Duty of Law Enforcement Officer to Advise Suspect of Their Rights Under Implied Consent Law, Including Offers of Test Alternatives, 51 A.L.R.7th 2.