2010 Georgia Code
TITLE 40 - MOTOR VEHICLES AND TRAFFIC
CHAPTER 5 - DRIVERS' LICENSES
ARTICLE 3 - CANCELLATION, SUSPENSION, AND REVOCATION OF LICENSES
§ 40-5-67.1 - Chemical tests; implied consent notices; rights of motorists; test results; refusal to submit; suspension or denial; hearing and review; compensation of officers; inspection and certification of breath-testing instruments

O.C.G.A. 40-5-67.1 (2010)
40-5-67.1. Chemical tests; implied consent notices; rights of motorists; test results; refusal to submit; suspension or denial; hearing and review; compensation of officers; inspection and certification of breath-testing instruments


(a) The test or tests required under Code Section 40-5-55 shall be administered as soon as possible at the request of a law enforcement officer having reasonable grounds to believe that the person has been driving or was in actual physical control of a moving motor vehicle upon the highways or elsewhere throughout this state in violation of Code Section 40-6-391 and the officer has arrested such person for a violation of Code Section 40-6-391, any federal law in conformity with Code Section 40-6-391, or any local ordinance which adopts Code Section 40-6-391 by reference or the person has been involved in a traffic accident resulting in serious injuries or fatalities. Subject to Code Section 40-6-392, the requesting law enforcement officer shall designate which test or tests shall be administered initially and may subsequently require a test or tests of any substances not initially tested.

(b) At the time a chemical test or tests are requested, the arresting officer shall select and read to the person the appropriate implied consent notice from the following:

(1) Implied consent notice for suspects under age 21:
"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.
If you submit to testing and the results indicate an alcohol
concentration of 0.02 grams or more, your Georgia driver's license or
privilege to drive on the highways of this state may be suspended for
a minimum period of one year. After first submitting to the required
state tests, you are entitled to additional chemical tests of your
blood, breath, urine, or other bodily substances at your own expense
and from qualified personnel of your own choosing. Will you submit to
the state administered chemical tests of your ( designate which
tests) under the implied consent law?"

(2) Implied consent notice for suspects age 21 or over:
"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.
If you submit to testing and the results indicate an alcohol
concentration of 0.08 grams or more, your Georgia driver's license or
privilege to drive on the highways of this state may be suspended for
a minimum period of one year. After first submitting to the required
state tests, you are entitled to additional chemical tests of your
blood, breath, urine, or other bodily substances at your own expense
and from qualified personnel of your own choosing. Will you submit to
the state administered chemical tests of your ( designate which
tests ) under the implied consent law?"

(3) Implied consent notice for commercial motor vehicle driver suspects:
"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, you will be disqualified from
operating a commercial motor vehicle for a minimum period of one
year. Your refusal to submit to the required testing may be offered
into evidence against you at trial. If you submit to testing and the
results indicate the presence of any alcohol, you will be issued an
out-of-service order and will be prohibited from operating a motor
vehicle for 24 hours. If the results indicate an alcohol
concentration of 0.04 grams or more, you will be disqualified from
operating a commercial motor vehicle for a minimum period of one
year. After first submitting to the required state tests, you are
entitled to additional chemical tests of your blood, breath, urine,
or other bodily substances at your own expense and from qualified
personnel of your own choosing. Will you submit to the state
administered chemical tests of your ( designate which tests ) under
the implied consent law?"

If any such notice is used by a law enforcement officer to advise a person of his or her rights regarding the administration of chemical testing, such person shall be deemed to have been properly advised of his or her rights under this Code section and under Code Section 40-6-392 and the results of any chemical test, or the refusal to submit to a test, shall be admitted into evidence against such person. Such notice shall be read in its entirety but need not be read exactly so long as the substance of the notice remains unchanged.

(c) If a person under arrest or a person who was involved in any traffic accident resulting in serious injuries or fatalities submits to a chemical test upon the request of a law enforcement officer and the test results indicate that a suspension or disqualification is required under this Code section, the results shall be reported to the department. Upon the receipt of a sworn report of the law enforcement officer that the officer had reasonable grounds to believe the arrested person had been driving or was in actual physical control of a moving motor vehicle upon the highways or elsewhere throughout this state in violation of Code Section 40-6-391 or that such person had been driving or was in actual physical control of a moving motor vehicle upon the highways or elsewhere throughout this state and was involved in a traffic accident involving serious injuries or fatalities and that the person submitted to a chemical test at the request of the law enforcement officer and the test results indicate either an alcohol concentration of 0.08 grams or more or, for a person under the age of 21, an alcohol concentration of 0.02 grams or more, the department shall suspend the person's driver's license, permit, or nonresident operating privilege pursuant to Code Section 40-5-67.2, subject to review as provided for in this chapter. Upon the receipt of a sworn report of the law enforcement officer that the arrested person had been operating or was in actual physical control of a moving commercial motor vehicle and the test results indicate an alcohol concentration of 0.04 grams or more, the department shall disqualify the person from operating a motor vehicle for a minimum period of one year.

(d) If a person under arrest or a person who was involved in any traffic accident resulting in serious injuries or fatalities refuses, upon the request of a law enforcement officer, to submit to a chemical test designated by the law enforcement officer as provided in subsection (a) of this Code section, no test shall be given; but the law enforcement officer shall report the refusal to the department. Upon the receipt of a sworn report of the law enforcement officer that the officer had reasonable grounds to believe the arrested person had been driving or was in actual physical control of a moving motor vehicle upon the highways or elsewhere throughout this state in violation of Code Section 40-6-391 or that such person had been driving or was in actual physical control of a moving motor vehicle upon the highways or elsewhere throughout this state and was involved in a traffic accident which resulted in serious injuries or fatalities and that the person had refused to submit to the test upon the request of the law enforcement officer, the department shall suspend the person's driver's license, permit, or nonresident operating privilege for a period of one year or if the person was operating or in actual physical control of a commercial motor vehicle, the department shall disqualify the person from operating a commercial motor vehicle and shall suspend the person's driver's license, permit, or nonresident operating privilege, subject to review as provided for in this chapter.

(d.1) Nothing in this Code section shall be deemed to preclude the acquisition or admission of evidence of a violation of Code Section 40-6-391 if obtained by voluntary consent or a search warrant as authorized by the Constitution or laws of this state or the United States.

(e) If the person is a resident without a driver's license, commercial driver's license, or permit to operate a motor vehicle in this state, the department shall deny issuance of a license or permit to such person for the same period provided in subsection (c) or (d) of this Code section, whichever is applicable, for suspension of a license or permit or disqualification to operate a commercial motor vehicle subject to review as provided for in this chapter.
(f)(1) The law enforcement officer, acting on behalf of the department, shall personally serve the notice of intention to suspend or disqualify the license of the arrested person or other person refusing such test on such person at the time of the person's refusal to submit to a test or at the time at which such a test indicates that suspension or disqualification is required under this Code section. The law enforcement officer shall take possession of any driver's license or permit held by any person whose license is subject to suspension pursuant to subsection (c) or (d) of this Code section, if any, and shall issue a 30 day temporary permit. The officer shall forward the person's driver's license to the department along with the notice of intent to suspend or disqualify and the sworn report required by subsection (c) or (d) of this Code section within ten calendar days after the date of the arrest of such person. This paragraph shall not apply to any person issued a 180 day temporary permit pursuant to subsection (b) of Code Section 40-5-67. The failure of the officer to transmit the sworn report required by this Code section within ten calendar days shall not prevent the department from accepting such report and utilizing it in the suspension of a driver's license as provided in this Code section.

(2) If notice has not been given by the arresting officer, the department, upon receipt of the sworn report of such officer, shall suspend the person's driver's license, permit, or nonresident operating privilege or disqualify such person from operating a motor vehicle and, by regular mail, at the last known address, notify such person of such suspension or disqualification. The notice shall inform the person of the grounds of suspension or disqualification, the effective date of the suspension or disqualification, and the right to review. The notice shall be deemed received three days after mailing.
(g)(1) A person whose driver's license is suspended or who is disqualified from operating a commercial motor vehicle pursuant to this Code section shall remit to the department a $150.00 filing fee together with a request, in writing, for a hearing within ten business days from the date of personal notice or receipt of notice sent by certified mail or statutory overnight delivery, return receipt requested, or the right to said hearing shall be deemed waived. Within 30 days after receiving a written request for a hearing, the department shall hold a hearing as is provided in Chapter 13 of Title 50, the "Georgia Administrative Procedure Act." The hearing shall be recorded.

(2) The scope of the hearing shall be limited to the following issues:

(A) (i) Whether the law enforcement officer had reasonable grounds to believe the person was driving or in actual physical control of a moving motor vehicle while under the influence of alcohol or a controlled substance and was lawfully placed under arrest for violating Code Section 40-6-391; or

(ii) Whether the person was involved in a motor vehicle accident or collision resulting in serious injury or fatality; and

(B) Whether at the time of the request for the test or tests the officer informed the person of the person's implied consent rights and the consequence of submitting or refusing to submit to such test; and

(C) (i) Whether the person refused the test; or

(ii) Whether a test or tests were administered and the results indicated an alcohol concentration of 0.08 grams or more or, for a person under the age of 21, an alcohol concentration of 0.02 grams or more or, for a person operating or having actual physical control of a commercial motor vehicle, an alcohol concentration of 0.04 grams or more; and

(D) Whether the test or tests were properly administered by an individual possessing a valid permit issued by the Division of Forensic Sciences of the Georgia Bureau of Investigation on an instrument approved by the Division of Forensic Sciences or a test conducted by the Division of Forensic Sciences, including whether the machine at the time of the test was operated with all its electronic and operating components prescribed by its manufacturer properly attached and in good working order, which shall be required. A copy of the operator's permit showing that the operator has been trained on the particular type of instrument used and one of the original copies of the test results or, where the test is performed by the Division of Forensic Sciences, a copy of the crime lab report shall satisfy the requirements of this subparagraph.

(3) The hearing officer shall, within five calendar days after such hearing, forward a decision to the department to rescind or sustain the driver's license suspension or disqualification. If no hearing is requested within the ten business days specified above, and the failure to request such hearing is due in whole or in part to the reasonably avoidable fault of the person, the right to a hearing shall have been waived. The request for a hearing shall not stay the suspension of the driver's license; provided, however, that if the hearing is timely requested and is not held before the expiration of the temporary permit and the delay is not due in whole or in part to the reasonably avoidable fault of the person, the suspension shall be stayed until such time as the hearing is held and the hearing officer's decision is made.

(4) In the event the person is acquitted of a violation of Code Section 40-6-391 or such charge is initially disposed of other than by a conviction or plea of nolo contendere, then the suspension shall be terminated and deleted from the driver's license record. An accepted plea of nolo contendere shall be entered on the driver's license record and shall be considered and counted as a conviction for purposes of any future violations of Code Section 40-6-391. In the event of an acquittal or other disposition other than by a conviction or plea of nolo contendere, the driver's license restoration fee shall be promptly returned by the department to the licensee.

(h) If the suspension is sustained after such a hearing, the person whose license has been suspended under this Code section shall have a right to file for a judicial review of the department's final decision, as provided for in Chapter 13 of Title 50, the "Georgia Administrative Procedure Act"; while such appeal is pending, the order of the department shall not be stayed.

(i) Subject to the limitations of this subsection, any law enforcement officer who attends a hearing provided for by subsection (g) of this Code section for the purpose of giving testimony relative to the subject of such hearing shall be compensated in the amount of $20.00 for each day's attendance at such hearing. In the event a law enforcement officer gives testimony at two or more different hearings on the same day, such officer shall receive only $20.00 for attendance at all hearings. The compensation provided for in this subsection shall not be paid to any law enforcement officer who is on regular duty or who is on a lunch or other break from regular duty at the time the officer attends any such hearing. The compensation provided for by this subsection shall be paid to the law enforcement officer by the department from department funds at such time and in such manner as the commissioner shall provide by rules or regulations. The commissioner shall also require verification of a law enforcement officer's qualifying to receive the payment authorized by this subsection by requiring the completion of an appropriate document in substantially the following form:


IMPLIED CONSENT HEARING ATTENDANCE RECORD


OFFICER: S.S. No.

ADDRESS:

Street City State ZIP Code

DATE: TIME: A.M.
P.M.

CASE:
This is to certify that the police officer named above attended an
implied consent hearing as a witness or complainant on the date and time
shown above.

HEARING OFFICER: TITLE:
I certify that I appeared at the implied consent hearing described above
on the date and time shown above and that I was not on regular duty at the
time of attending the hearing and that I have not received and will not
receive compensation from my regular employer for attending the hearing.

Signature of officer:

APPROVED FOR PAYMENT:

Comptroller

(j) 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 Code
Section 40-6-392 and subparagraph (g)(2)(F) of this Code section.