2020 Georgia Code
Title 40 - Motor Vehicles and Traffic
Chapter 5 - Drivers' Licenses
Article 3 - Cancellation, Suspension, and Revocation of Licenses
§ 40-5-55. Implied Consent to Chemical Tests

1. The State of Georgia considers that any person who drives or is in actual physical control of any moving vehicle in violation of any provision of Code Section 40-6-391 constitutes a direct and immediate threat to the welfare and safety of the general public. Therefore, any person who operates a motor vehicle upon the highways or elsewhere throughout this state shall be deemed to have given consent, subject to Code Section 40-6-392, to a chemical test or tests of his or her blood, breath, urine, or other bodily substances for the purpose of determining the presence of alcohol or any other drug, if arrested for any offense arising out of acts alleged to have been committed in violation of Code Section 40-6-391 or if such person is involved in any traffic accident resulting in serious injuries or fatalities. The test or tests shall be administered 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. The test or tests shall be administered as soon as possible to any person who operates a motor vehicle upon the highways or elsewhere throughout this state who is involved in any traffic accident resulting in serious injuries or fatalities. Subject to Code Section 40-6-392, the requesting law enforcement officer shall designate which of the test or tests shall be administered, provided a blood test with drug screen may be administered to any person operating a motor vehicle involved in a traffic accident resulting in serious injuries or fatalities.
2. Any person who is dead, unconscious, or otherwise in a condition rendering such person incapable of refusal shall be deemed not to have withdrawn the consent provided by subsection (a) of this Code section, and the test or tests may be administered, subject to Code Section 40-6-392.
3. As used in this Code section, the term "traffic accident resulting in serious injuries or fatalities" means any motor vehicle accident in which a person was killed or in which one or more persons suffered a fractured bone, severe burns, disfigurement, dismemberment, partial or total loss of sight or hearing, or loss of consciousness.

(Ga. L. 1968, p. 448, § 2; Ga. L. 1974, p. 562, § 2; Ga. L. 1974, p. 633, § 3; Code 1933, § 68B-306, enacted by Ga. L. 1975, p. 1008, § 1; Ga. L. 1983, p. 1000, § 3; Ga. L. 1985, p. 630, § 1; Ga. L. 1985, p. 758, § 2; Ga. L. 1987, p. 1489, § 1; Ga. L. 1989, p. 1698, § 1; Ga. L. 1990, p. 2048, § 4; Ga. L. 1991, p. 1886, § 2; Ga. L. 1992, p. 912, § 1; Ga. L. 1992, p. 2564, § 1; Ga. L. 1993, p. 940, § 2; Ga. L. 2001, p. 208, § 1-1.)

- Pursuant to Code Section 28-9-5, in 1992, subsection (g) was redesignated as present subsection (c) in light of the amendment to this Code section by Ga. L. 1992, p. 2564, § 1.

- For annual survey of administrative law, see 38 Mercer L. Rev. 17 (1986). For annual survey of criminal law, see 57 Mercer L. Rev. 113 (2005). For note on 1992 amendment of this Code section, see 9 Ga. St. U.L. Rev. 298 (1992). 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, "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
• Notice
• Testing
• Serious Injury
• Admissibility

General Consideration

Strict construction.

- Former Code 1933, § 68B-306 (see now O.C.G.A. § 40-5-55) was in derogation of the common law and must be strictly construed and followed. Hardison v. Chastain, 151 Ga. App. 678, 261 S.E.2d 425 (1979).

Construction with O.C.G.A. § 40-5-67.1. - O.C.G.A. § 40-5-55 is the springboard for a law enforcement officer's duties under O.C.G.A. § 40-5-67.1 to request chemical testing of a driver's bodily substances and to inform the driver of the implied consent warning; the two statutes are in pari materia since the statutes relate to the same subject matter. Snyder v. State, 283 Ga. 211, 657 S.E.2d 834 (2008).

- Since, under the Constitution of Georgia, the state may constitutionally take a blood sample from a defendant without defendant's consent, O.C.G.A. §§ 40-5-55 and40-6-392 grant, rather than deny, a right to a defendant by providing for refusal to take such a test. Allen v. State, 254 Ga. 433, 330 S.E.2d 588 (1985).

Choice provided to a DUI defendant under Georgia law - submitting to a blood-alcohol test or refusing to submit, with resultant sanctions - is not so painful, dangerous, or severe, or so violative of religious beliefs, that no choice actually exists, and does not amount to compulsion on behalf of the state or a violation of due process. Allen v. State, 254 Ga. 433, 330 S.E.2d 588 (1985).

Nothing in the implied consent law prohibits an officer from advising a driver of the driver's implied consent rights and requesting multiple chemical tests at one time, and such a request would not violate the Fourth Amendment as an unreasonable attempt to "shop" through the driver's bodily fluids in search of evidence. McKeown v. State, 187 Ga. App. 685, 371 S.E.2d 243 (1988).

Choice afforded a suspect under O.C.G.A. § 40-5-55 either to agree or refuse to take a test is not protected by the privilege against self-incrimination since there is a distinction between compelling an arrestee to perform some act such as a field sobriety test versus requiring the arrestee to submit to the collection of evidence from the arrestee's person, such as providing a urine sample. Kehinde v. State, 236 Ga. App. 400, 512 S.E.2d 311 (1999), overruled on other grounds by State v. Turnquest, 305 Ga. 758, 827 S.E.2d 865 (2019).

Implied consent provision in O.C.G.A. § 40-5-55(a) is unconstitutional as violative of Ga. Const. 1983, Art. I, Sec. I, Para. XIII, and the Fourth and Fourteenth Amendments of the United States Constitution because it authorizes a search and seizure, chemical testing of a suspect's blood, without probable cause that the suspect had been driving while impaired since the suspect was involved in an accident involving serious injuries or fatalities. Cooper v. State, 277 Ga. 282, 587 S.E.2d 605 (2003).

Georgia Supreme Court has held that O.C.G.A. § 40-5-55(a) is unconstitutional to the extent it requires chemical testing of the driver of a vehicle involved in a traffic accident resulting in serious injuries or death as it violates the Fourth and Fourteenth Amendments of the United States Constitution because the statute authorizes a search and seizure without probable cause; thus, when testing is conducted based upon the seriousness of injuries in an accident, rather than upon probable cause that the person has violated O.C.G.A. § 40-6-391, the results are inadmissible. Buchanan v. State, 264 Ga. App. 148, 589 S.E.2d 876 (2003).

Defendant's claim that the blood test results were improperly admitted on the basis that O.C.G.A. § 40-5-55 was unconstitutional lacked merit as the defendant failed to raise that issue until the motion for new trial, and the constitutionality issue was not properly before the trial court at that time because it was too late to raise that issue after guilty verdicts against the defendant had been returned. Verlangieri v. State, 273 Ga. App. 585, 615 S.E.2d 633 (2005).

Because a defendant was arrested for driving under the influence under O.C.G.A. § 40-6-391 based on probable cause and the state complied with the implied consent requirements of O.C.G.A. § 40-5-55, the defendant could not complain that drug and alcohol testing violated the search and seizure provisions of the Fourth Amendment or the Georgia Constitution because the implied consent statute allowed for the warrantless compelled testing of bodily fluids based on the existence of probable cause, but without proof of the existence of exigent circumstances. Cornwell v. State, 283 Ga. 247, 657 S.E.2d 195 (2008).

Measurement of blood alcohol content based on a breath test requires the cooperation of the person being tested and compelling a defendant to perform an act that is incriminating in nature is precisely what Ga. Const. 1983, Art. I, Sec. I, Para. XVI prohibits. Olevik v. State, 302 Ga. 228, 806 S.E.2d 505 (2017).

Ga. Const. 1983, Art. I, Sec. I, Para. XVI was held to protect against compelled breath tests and affords individuals a constitutional right to refuse testing. Submitting to a breath test implicates a person's right against compelled self-incrimination and prior decisions holding otherwise are overruled. Olevik v. State, 302 Ga. 228, 806 S.E.2d 505 (2017).

Trial court's denial of defendant's motion to suppress was reversed because Georgia Supreme Court concluded that Ga. Const. Art. I, Sec. I, Para. XVI precluded admission of evidence that suspect refused to consent to breath test, thus, O.C.G.A. §§ 40-5-67.1(b) and40-6-392(d) were unconstitutional to the extent that they allow defendant's refusal to submit to a breath test to be admitted into evidence at criminal trial. Elliott v. State, 305 Ga. 179, 824 S.E.2d 265 (2019)(decided under former version of Code Sections40-5-67.1 and40-6-392).

Georgia Supreme Court concluded that Ga. Const. Art. I, Sec. I, Para. XVI precluded admission of evidence that suspect refused to consent to a breath test, thus, O.C.G.A. §§ 40-5-67.1(b) and40-6-392(d) were unconstitutional to extent that they allow defendant's refusal to submit to breath test to be admitted into evidence at criminal trial. Elliott v. State, 305 Ga. 179, 824 S.E.2d 265 (2019)(decided under former version of Code Sections40-5-67.1 and40-6-392).

- Argument that the results of an alco-sensor test were inadmissible because the defendant submitted to the test at the request of the defendant's wife, and not the officer's request, were meritless because O.C.G.A. §§ 40-5-55 and40-6-392(a)(4) did not apply to the administration of the alco-sensor test. Hernandez v. State, 297 Ga. App. 177, 676 S.E.2d 795 (2009).

- Person was not entitled to advice of counsel when deciding whether to submit to test under former Code 1933, § 68B-306 (see now O.C.G.A. § 40-5-55). Department of Pub. Safety v. Maples, 149 Ga. App. 484, 254 S.E.2d 724 (1979); Hardison v. Chastain, 151 Ga. App. 678, 261 S.E.2d 425 (1979).

- O.C.G.A. § 40-5-55(a), as the statute now stands, provides that consent is implied only if a person is arrested for a violation of O.C.G.A. § 40-6-391. Buchanan v. State, 264 Ga. App. 148, 589 S.E.2d 876 (2003).

- After a defendant was involved in an accident which resulted in the defendant sustaining serious injuries, the investigating officer had probable cause to believe that the defendant was driving under the influence and, therefore, the officer was not required to arrest the defendant before reading the implied consent warning; however, if a different accident did not involve serious injuries, the suspect needed to be under arrest before the implied consent rights were read to that suspect. Hough v. State, 279 Ga. 711, 620 S.E.2d 380 (2005).

- Stated purpose of O.C.G.A. § 40-5-55 is to protect the citizens of this state from individuals driving under the influence because these drivers constitute "a direct and immediate threat to the welfare and safety of the general public." This extremely important purpose, in turn, must be balanced against the intrusion created by chemical testing on the individual's Fourth Amendment rights after the individual has been involved in a traffic accident involving serious injuries or fatalities and the investigating officer has probable cause to believe that the individual was driving under the influence. In considering this balance, it must further be remembered that the Fourth Amendment was designed to protect individuals only from unreasonable searches. In a scenario where the driver/defendant is seriously injured in an automobile accident, given the presence of probable cause, the requirement that a person submit to a chemical test is inherently reasonable in the balance, and the Fourth Amendment's "probable cause yardstick" measures up to be constitutionally sound. Hough v. State, 279 Ga. 711, 620 S.E.2d 380 (2005).

- Police had reasonable grounds to invoke defendant's implied consent to chemical testing when defendant was arrested in connection with a driving related offense, driving with a revoked license, and the officer identified a strong odor of alcohol on defendant's person. Duvall v. State, 250 Ga. App. 87, 550 S.E.2d 479 (2001).

Before an unconscious person could have been deemed not to have withdrawn implied consent to blood alcohol testing, that implied consent must have first existed as provided by O.C.G.A. § 40-5-55(a); consent was implied only if a person was arrested for a violation of O.C.G.A. § 40-6-391, and since a defendant was not arrested for any such violation before the blood test was conducted, a trial court properly suppressed the results of the blood test. State v. Bass, 273 Ga. App. 540, 615 S.E.2d 589 (2005).

Suppression of the results of a state-administered breath test because an officer did not specifically state a defendant was being arrested for DUI was error. Acknowledged probable cause to arrest the defendant for DUI coupled with the defendant's actual arrest satisfied the requirements of O.C.G.A. § 40-5-55 and provided the grounds for invoking the implied consent procedures including reading the defendant a standard implied consent rights form. State v. Underwood, 283 Ga. 498, 661 S.E.2d 529 (2008).

- Because the defendant refused to submit to the chemical test required by the arresting officer pursuant to O.C.G.A. § 40-5-55, the defendant was excluded from the discovery provisions of O.C.G.A. § 40-6-392(a)(4), and the trial court correctly denied the defendant's discovery request made pursuant to those provisions. Massey v. State, 331 Ga. App. 430, 771 S.E.2d 122 (2015), cert. denied, 2015 Ga. LEXIS 411 (Ga. 2015).

- Arrest for driving under the influence (DUI) was not a prerequisite for administration of a chemical test; when an officer had reasonable grounds to believe a traffic offense was committed while defendant was violating DUI laws, a chemical test was proper and admissible. State v. Goolsby, 262 Ga. App. 867, 586 S.E.2d 754 (2003).

- O.C.G.A. § 40-5-55(a) does not require that the serious injury or fatality required to have resulted from a traffic accident must have been suffered by the driver whose bodily substances are sought for chemical testing. Snyder v. State, 283 Ga. 211, 657 S.E.2d 834 (2008).

- Implied consent statute was not violated because an officer other than the arresting officer read the defendant's rights to the defendant. Edge v. State, 226 Ga. App. 559, 487 S.E.2d 117 (1997), overruled on other grounds by Zilke v. State, 299 Ga. 232, 787 S.E.2d 745 (2016).

- Non-English-speaking driver is not in a condition rendering such person incapable of refusal for the purposes of O.C.G.A. § 40-5-55(b). Lee v. State, 324 Ga. App. 28, 749 S.E.2d 32 (2013).

Defendant's challenge to an implied consent jury instruction was rejected as the challenged language came from the statute, not from an appellate court opinion; the defendant's claim that the instruction contained an appellate court's interpretation had been rejected in two other binding cases. Jones v. State, 273 Ga. App. 192, 614 S.E.2d 820 (2005).

- Defendant's conviction was properly reversed because the police improperly threatened to obtain a search warrant to obtain blood and urine for testing through a catheter after the defendant invoked the right under the implied consent law to refuse the testing. State v. Collier, 279 Ga. 316, 612 S.E.2d 281 (2005).

Police do not have the authority to seek a search warrant to compel a defendant to submit blood and urine samples for drug testing after a defendant has invoked the defendant's right under the implied consent law to refuse the testing. State v. Collier, 279 Ga. 316, 612 S.E.2d 281 (2005).

- In a vehicular homicide prosecution, even if the seizure of defendant's blood sample, following an implied consent advisement, under O.C.G.A. § 40-5-55(a), was illegal, the defendant's statement made to another officer four hours later was admissible due to the amount of time between the advisement and the statement and the fact that two different officers were involved. McGrath v. State, 277 Ga. App. 825, 627 S.E.2d 866 (2006), cert. denied, 549 U.S. 1223, 127 S. Ct. 1287 (2007).

- While the appeals court agreed that the trial court erred in denying the defendant's motion to suppress the results of the chemical test of the defendant's blood, the error was harmless as other evidence presented by the state, specifically the defendant's admission to being intoxicated and the testimony of other witnesses describing their observations, proved the defendant's intoxication. Harrelson v. State, 287 Ga. App. 664, 653 S.E.2d 98 (2007).

- Order denying the defendant's motion to suppress any evidence obtained as a result of arrest was reversed because the officer lacked probable cause to arrest the defendant for driving under the influence since the officer testified that the stop was initiated not because of the defendant's driving, but because of an obstructed license plate, and the defendant indicated no signs of intoxication following certain tests and the only evidence was the defendant's admission the defendant had consumed a beer earlier. Bostic v. State, 332 Ga. App. 604, 774 S.E.2d 175 (2015).

Cited in Cofer v. Schultz, 146 Ga. App. 771, 247 S.E.2d 586 (1978); Cofer v. Summerlin, 147 Ga. App. 721, 250 S.E.2d 174 (1978); Longino v. Cofer, 148 Ga. App. 341, 251 S.E.2d 113 (1978); Jackson v. State, 152 Ga. App. 441, 263 S.E.2d 181 (1979); Adams v. Hardison, 153 Ga. App. 152, 264 S.E.2d 693 (1980); Milner v. Department of Pub. Safety, 153 Ga. App. 313, 265 S.E.2d 310 (1980); Tolbert v. Hicks, 158 Ga. App. 642, 281 S.E.2d 368 (1981); Willis v. State, 249 Ga. 261, 290 S.E.2d 87 (1982); Harper v. State, 164 Ga. App. 230, 296 S.E.2d 782 (1982); Smith v. State, 165 Ga. App. 333, 298 S.E.2d 587 (1982); Epps v. State, 169 Ga. App. 157, 312 S.E.2d 146 (1983); Patton v. State, 170 Ga. App. 807, 318 S.E.2d 231 (1984); Hardison v. Sellers, 171 Ga. App. 327, 319 S.E.2d 134 (1984); State v. Holton, 173 Ga. App. 241, 326 S.E.2d 235 (1984); McElroy v. State, 173 Ga. App. 685, 327 S.E.2d 805 (1985); Mitchell v. State, 174 Ga. App. 594, 330 S.E.2d 798 (1985); Thompson v. State, 175 Ga. App. 645, 334 S.E.2d 312 (1985); Mathews v. State, 176 Ga. App. 394, 336 S.E.2d 259 (1985); State v. Brown, 178 Ga. App. 307, 342 S.E.2d 779 (1986); State v. Greene, 178 Ga. App. 875, 344 S.E.2d 771 (1986); State v. Hughes, 181 Ga. App. 464, 352 S.E.2d 643 (1987); Napier v. State, 184 Ga. App. 770, 362 S.E.2d 501 (1987); Odom v. State, 185 Ga. App. 496, 364 S.E.2d 626 (1988); Hunter v. State, 191 Ga. App. 769, 382 S.E.2d 679 (1989); Casas v. State, 193 Ga. App. 53, 387 S.E.2d 20 (1989); State v. Webb, 212 Ga. App. 872, 443 S.E.2d 630 (1994); Miles v. Ahearn, 243 Ga. App. 741, 534 S.E.2d 175 (2000); Fairbanks v. State, 244 Ga. App. 123, 534 S.E.2d 529 (2000); Rodriguez v. State, 275 Ga. 283, 565 S.E.2d 458 (2002); Gantt v. State, 263 Ga. App. 102, 587 S.E.2d 255 (2003); Davis v. State, 286 Ga. App. 443, 649 S.E.2d 568 (2007); State v. Stephens, 289 Ga. App. 167, 657 S.E.2d 18 (2008); State v. Preston, 293 Ga. App. 94, 666 S.E.2d 417 (2008); Daniel v. State, 298 Ga. App. 245, 679 S.E.2d 811 (2009); McClure v. Kemp, 285 Ga. 801, 684 S.E.2d 255 (2009); Mikell v. Hortenstine, 334 Ga. App. 621, 780 S.E.2d 53 (2015).

Notice

No right to Miranda warnings before taking breath test.

- Evidence of defendant's refusal to take a breath test did not need to be excluded simply because the officer did not advise the defendant of defendant's rights. Lankford v. State, 204 Ga. App. 405, 419 S.E.2d 498 (1992), cert. denied, 506 U.S. 1051, 113 S. Ct. 972, 122 L. Ed. 2d 127 (1993).

Choice afforded a suspect under O.C.G.A. §§ 40-5-55 and40-6-392, either to agree or refuse to take a blood-alcohol test, is not protected by the privilege against self-incrimination and the form signed by the defendant, agreeing to take a breath test, was likewise unprotected, such that the court erred in suppressing the test based on the police officer's failure to inform defendant of defendant's Miranda rights. State v. Mack, 207 Ga. App. 287, 427 S.E.2d 615 (1993).

No Miranda warnings were required before the defendant made a statement since the statement was made voluntarily, and was not made in response to police interrogation or while in police custody. Stevenson v. State, 264 Ga. 892, 453 S.E.2d 18 (1995).

- Implied consent statute was properly implemented, since the defendant was given the implied consent warnings when the defendant was arrested for driving with a suspended license but was not again given the implied consent warnings after the defendant took a breath test and was placed under arrest for driving under the influence. Parsons v. State, 190 Ga. App. 803, 380 S.E.2d 87 (1989).

Police officer was not required to again allow the defendant to consider the defendant's options once the defendant knew the defendant had failed an administered breath test by returning to the defendant the form which the defendant had previously reviewed, initialled, and signed so as to indicate the defendant's desire for an additional test. State v. Hull, 210 Ga. App. 72, 435 S.E.2d 284 (1993).

In all cases in which police officers request a chemical test of a person's blood, urine, or other bodily substances in connection with the operation of a motor vehicle for the purpose of determining whether the driver was under the influence of alcohol or drugs, the officers must give the notice required by the implied consent statute. State v. Morgan, 289 Ga. App. 706, 658 S.E.2d 237 (2008), cert. denied, No. S08C1017, 2008 Ga. LEXIS 504 (Ga. 2008).

- Two-hour delay before the defendant was advised of the defendant's implied consent rights was not untimely because the delay was caused by a newly hired officer's call for assistance to confirm that officer's determination that the defendant was driving under the influence. Edge v. State, 226 Ga. App. 559, 487 S.E.2d 117 (1997), overruled on other grounds by Zilke v. State, 299 Ga. 232, 787 S.E.2d 745 (2016).

Trial court did not err in denying a defendant's motion to suppress evidence of the blood-alcohol results obtained after the defendant's vehicle was stopped and it was determined that the defendant was driving under the influence; the defendant consented to such a test as a driver using a vehicle on the Georgia highways and delay in administering the implied consent warning was due to the defendant's drunken condition and difficult behavior. Cain v. State, 274 Ga. App. 533, 617 S.E.2d 567 (2005).

Trial court did not err by refusing to suppress the defendant's blood-test results based on not being under arrest prior to being read Georgia's implied consent notice because, although the defendant's recollection differed from that of the law-enforcement officer, and although defense counsel cross-examined the officer extensively as to alleged inconsistencies in the chronology of events, the officer testified that the officer issued citations to the defendant before reading Georgia's implied consent notice. Chernowski v. State, 330 Ga. App. 702, 769 S.E.2d 126 (2015).

- Defendant's argument that the officer advised the defendant that the defendant was under arrest for driving under the influence and not for a violation of O.C.G.A. § 40-6-391(a)(6) and that the defendant never consented to the testing of the defendant's blood for the presence of drugs failed; nothing in O.C.G.A. § 40-5-55 or O.C.G.A. § 40-6-392 required the officer to tell the defendant that the defendant was under arrest for a drug offense in order for the implied consent to be valid. Meiklejohn v. State, 281 Ga. App. 712, 637 S.E.2d 117 (2006).

There was no error in the trial court's conclusion that the officer read the defendant the implied consent notice before the blood sample was obtained as the officer testified that the officer had done so and the nurse who obtained the blood sample testified the nurse never drew a patient's blood for law enforcement purposes unless the nurse personally observed an officer read the implied consent notice to the patient. Diaz v. State, 344 Ga. App. 291, 810 S.E.2d 566 (2018), cert. denied, No. S18C0793, 2018 Ga. LEXIS 504 (Ga. 2018).

- Any failure by the Department of Transportation in complying with the reporting requirements of O.C.G.A. § 40-5-51 pertaining to suspension or revocation of operating privileges of nonresident motorists did not diminish the fact that former subsection (c) of O.C.G.A. § 40-5-55, in effect at the time of the offense, evoked procedures at the time of defendant's arrest for immediate suspension of any person's driving privileges upon refusal to submit to the chemical test prescribed by O.C.G.A. § 40-5-55(a); consequently, since the trial transcript revealed that the deputy advised the defendant at the time of arrest of the defendant's options pursuant to Georgia's implied consent law, there was no basis for excluding evidence of the results of the state-administered breath test. Anthony v. State, 211 Ga. App. 622, 441 S.E.2d 70 (1993), overruled on other grounds, State v. Coleman, 216 Ga. App. 598, 455 S.E.2d 604 (1995).

- Required timing of the implied consent notice for a person who is involved in a traffic incident resulting in serious injuries or a fatality, and who is not arrested at that time for a violation of O.C.G.A. § 40-6-391 is: (a) law enforcement officers must administer chemical tests for alcohol and drugs as soon as possible; and (b) the implied consent notice must be given at the time such test is requested, which may or may not be at the time of actual testing. Joiner v. State, 239 Ga. App. 843, 522 S.E.2d 25 (1999).

Although a police officer who detected a strong order of alcohol coming from the defendant who was standing over a motorcycle that was involved in an accident informed the defendant of the defendant's rights under Georgia's implied consent statute before the officer arrested the defendant for driving under the influence of alcohol, the appellate court found that the defendant was not free to leave at the time the implied consent warning was read to the defendant, and the appellate court held that the reading of the notice satisfied the requirements of O.C.G.A. §§ 40-5-55,40-5-67.1(a), and 40-6- 392(a)(4). Oliver v. State, 268 Ga. App. 290, 601 S.E.2d 774 (2004).

- O.C.G.A. § 40-5-67.1 implied consent notice given at the "time of arrest" under O.C.G.A. § 40-6-392 was timely when the notice preceded the formal arrest by a few seconds and the O.C.G.A. § 40-5-55(a) state-administered chemical testing, "Intoxilyzer 5000" testing, was done after the arrest. The "time of the arrest" included times as close in proximity to the instant of arrest as the circumstances of the individual case might warrant. Kahl v. State, 268 Ga. App. 879, 602 S.E.2d 888 (2004).

- Even though the arresting officer testified that the officer read implied consent warnings to the defendant and the driver of another vehicle at the same time, since the officer also testified that the officer "independently" advised both suspects of their options before subjecting the suspects to a breath test, the trial court did not err in failing to suppress the results of the test. Hilliard v. State, 216 Ga. App. 618, 455 S.E.2d 82 (1995).

- Notices advising the defendant that if the defendant refused testing the defendant would be disqualified from operating a commercial motor vehicle for a minimum of one year were adequate, even though the notices did not advise the defendant that refusal to submit to the tests could also disqualify the defendant from operating a private motor vehicle. State v. Becker, 240 Ga. App. 267, 523 S.E.2d 98 (1999).

- Administrative decision disqualifying a driver from driving a commercial motor vehicle for life based on the refusal to submit to state-administered chemical testing and a prior conviction for driving under the influence was upheld as the arresting officer informed the driver that the driver could lose that driver's license to drive upon refusing to submit to chemical testing, and the requirements of due process did not require the arresting officer to inform the driver of all the consequences of refusing to submit to chemical testing. Moreover, the driver requested and received a hearing under O.C.G.A. § 40-5-67.1(g)(1). Chancellor v. Dozier, 283 Ga. 259, 658 S.E.2d 592 (2008).

- Fact that the driver was a minor at the time the driver's blood was taken did not require that the driver's parents, after having been informed of the driver's rights under the implied consent law, consent to the taking of the driver's blood. Long v. State, 176 Ga. App. 89, 335 S.E.2d 587 (1985).

- Trial court erroneously applied the amendment of O.C.G.A. § 40-5-67.1(d) retroactively to the defendant's criminal matter, wherein the court denied suppression of a blood test result taken of the defendant as the investigating officer failed to provide the defendant with the requisite notice of the implied consent rights under O.C.G.A. § 40-5-55(a) prior to obtaining the defendant's consent; retroactive application of § 40-5-67.1(d) was improper because the amendment eliminated the defendant's substantive right to refuse to submit to testing. Williams v. State, 297 Ga. App. 626, 677 S.E.2d 773 (2009).

- Counsel was ineffective for failing to file a motion to suppress defendant's blood sample, which had tested positive for methamphetamine, because the defendant was not read the defendant's implied consent rights until nearly an hour after the defendant was arrested for leaving the scene of an accident, instead of at the time of defendant's arrest as required by O.C.G.A. §§ 40-5-55 and40-6-391(a)(4). Thrasher v. State, 300 Ga. App. 154, 684 S.E.2d 318 (2009).

- As to the defendant's conviction for driving under the influence, the trial court did not misapply O.C.G.A. § 40-5-55(b) when the court denied the defendant's motion in limine to preclude the results of the breath test because it was presumed that the court followed the line of cases holding that an arresting officer is not required to ensure that the driver understands the implied consent notice. Lee v. State, 324 Ga. App. 28, 749 S.E.2d 32 (2013).

- Trooper was not required to give the implied consent notice to the defendant, who was unconscious and had fractured a femur, was deemed to have given consent to testing. Bailey v. State, 338 Ga. App. 428, 790 S.E.2d 98 (2016).

Testing

Determination of actual consent required.

- Based on the United States Supreme Court decision in Missouri v. McNeely, in which the court rejected a per se rule that the natural metabolization of alcohol in a person's bloodstream constitutes an exigency justifying an exception to the U.S. Const., amend. 4's search warrant requirement for nonconsensual blood testing in all driving under the influence cases, the Georgia Supreme Court overruled Strong v. State, 231 Ga. 514 (1973), to the extent that decision holds otherwise. Williams v. State, 296 Ga. 817, 771 S.E.2d 373 (2015).

Defendant's driving under the influence case was remanded to the trial court because in considering the defendant's motion to suppress, the court failed to address whether the defendant gave actual consent to the procuring and testing of blood, which would require the determination of the voluntariness of the consent under the totality of the circumstances. Williams v. State, 296 Ga. 817, 771 S.E.2d 373 (2015).

- O.C.G.A. § 40-5-67.1, read in pari materia with O.C.G.A. §§ 40-5-55 and40-6-392, authorizes a law enforcement officer to designate the appropriate chemical test to be administered - breath, blood, urine, or other bodily substance - for the detection of the source of impairment as suspected by the officer. Jordan v. State, 223 Ga. App. 176, 477 S.E.2d 583 (1996).

- Defendant's failure to complete a breath test without justification negated defendant's right to an alternative test. Allen v. State, 229 Ga. App. 435, 494 S.E.2d 229 (1997).

- As long as a defendant's right to an independent chemical test was clear, an officer may have obtained consent for more than one chemical test and then elected which consented-to "test or tests" were to have been administered; an order suppressing defendant's breath test results was reversed. State v. Brantley, 263 Ga. App. 209, 587 S.E.2d 383 (2003).

- O.C.G.A. § 40-5-67.1, construed with O.C.G.A. §§ 40-5-55 and40-6-392, does not require blood or breath testing before an officer may require a suspect to provide a urine sample for analysis for the presence of alcohol, drugs, or marijuana. State v. Sumlin, 224 Ga. App. 205, 480 S.E.2d 260 (1997).

- When, due to inadvertence, a breathalyzer test of a defendant's breath cannot be completed and a retest is possible without inconveniencing the defendant and without delay, such a retest is not a violation of the defendant's rights and is not a basis for suppression of the results of the test. Montgomery v. State, 174 Ga. App. 95, 329 S.E.2d 166 (1985); Shadix v. State, 179 Ga. App. 644, 347 S.E.2d 298 (1986).

- Trial court did not err in excluding defendant's testimony regarding an independent blood test made more than eight hours after the arrest. Allen v. State, 229 Ga. App. 435, 494 S.E.2d 229 (1997).

Defendant's motion to suppress the results of a blood test administered pursuant to a search warrant was properly denied because the statute dealing with chemical tests for alcohol or drugs in a defendant's blood did not grant the defendant the right to an independent test when the officer obtained a search warrant for a blood test; the defendant forfeited the defendant's right to independent testing by refusing the arresting officer's request to submit to a state-administered breath test after being advised under the implied consent law; and the defendant was not entitled to take advantage of the independent test incentive as the defendant refused to submit to the chemical testing requested by the arresting officer. Hynes v. State, 341 Ga. App. 500, 801 S.E.2d 306 (2017).

- Chemical test may be requested under the implied consent statute even though the arresting officer lacks probable cause to arrest for substance-influenced driving if the officer has at least reasonable grounds to believe that a violation of O.C.G.A. § 40-5-55 has occurred. Davis v. State, 187 Ga. App. 517, 370 S.E.2d 779 (1988).

Results of a urine test were admissible in a prosecution for driving under the influence of methamphetamine since the officer had reasonable grounds to arrest the defendant based on the fact that the defendant's eyes were dilated and the defendant's inability to give the officer any explanation as to how or why the defendant drove the defendant's vehicle into the rear of a truck. Martin v. State, 214 Ga. App. 614, 448 S.E.2d 471 (1994).

Probable cause was required before chemical testing may be administered on a driver involved in an accident involving serious injuries because the provision of O.C.G.A. § 40-5-55 allowing such tests after accidents involving serious injury is unconstitutional to the extent that the law requires chemical testing regardless of any determination of probable cause. Evidence of a chemical test taken in this situation without probable cause was subject to suppression. Ferguson v. State, 277 Ga. 530, 590 S.E.2d 728 (2003).

- Blood sample taken pursuant to the implied consent law could not be subject to deoxyribonucleic acid (DNA) testing. State v. Gerace, 210 Ga. App. 874, 437 S.E.2d 862 (1993).

- Defendant's consent to testing in response to the implied consent warning was given with the understanding that it was to determine if the defendant was under the influence for purposes of violations of O.C.G.A. § 40-6-391 and the test results could not be used to support a charge of possession of marijuana. State v. Lewis, 233 Ga. App. 390, 504 S.E.2d 242 (1998).

Trial court erred in suppressing the defendant's refusal to submit to a state-administered chemical breath test as the implied consent notice given by a sheriff's deputy was substantially accurate and timely given, and irrespective of whether the refusal resulted from the defendant's confusion, it nevertheless remained a refusal; moreover, the defendant's choice to construe the law allowing for an option of designating the type of state-administered test was of no moment. State v. Brookbank, 283 Ga. App. 814, 642 S.E.2d 885 (2007).

- When a defendant went to a breathalyzer machine but plugged the hole with the defendant's tongue and declined to blow into the tube, the defendant's conduct could be viewed as a refusal to take the test; there was no evidence that the defendant suffered from a physical or medical condition that would prevent the defendant from providing an adequate breath sample. State v. Stewart, 286 Ga. App. 542, 649 S.E.2d 525 (2007), cert. denied, 2008 Ga. LEXIS 120 (Ga. 2008).

- Defendant was not entitled to suppression of the blood test in which the defendant tested positive for cocaine rather than alcohol after the defendant consented to the test after implied consent warnings were read to the defendant; nothing in O.C.G.A. § 40-5-55 excluded testing for drugs and alcohol as the defendant was notified that the test was for drugs and alcohol. Meiklejohn v. State, 281 Ga. App. 712, 637 S.E.2d 117 (2006).

- Trial court properly denied the defendant's motion in limine to exclude evidence that the defendant refused chemical testing based on the testimony of a deputy that while in the defendant's hospital room, a ticket was written for drunk driving and the defendant was advised of the custodial arrest; thus, there was no error in the trial court's determination that a reasonable person in the defendant's position would not think that they were free to leave at the time the deputy read the implied consent warnings. Plemmons v. State, 326 Ga. App. 765, 755 S.E.2d 205 (2014).

Serious Injury

Accident involving serious injury.

- Officers' observation that there was a lot of blood at the accident scene and that injuries included disfigurement of the passenger's leg and swelling of the driver's ankle constituted sufficient evidence of "serious" injury so as to invoke the driver's implied consent to a blood-alcohol test. Lewis v. State, 215 Ga. App. 796, 452 S.E.2d 228 (1994).

Because the traffic accident in which the defendant was involved resulted in a serious injury, the defendant was deemed by operation of law, pursuant to O.C.G.A. § 40-5-55, to have given consent to a chemical test of the defendant's bodily substances for the presence of alcohol or any other drug. Stevenson v. State, 264 Ga. 892, 453 S.E.2d 18 (1995).

Absent an arrest, a person involved in an accident resulting in serious injuries or fatalities must be informed of the person's implied consent rights within a reasonable amount of time after the accident as determined by the circumstances, and, when possible, before the administration of any state tests. Seith v. State, 225 Ga. App. 684, 484 S.E.2d 690 (1997).

In a vehicular homicide prosecution, when the defendant was given an implied consent advisement, under O.C.G.A. § 40-5-55(a), and a sample of blood was seized, the blood sample was admissible because the defendant was not required to submit to testing merely because of involvement in a traffic accident involving serious injuries but because an investigating law enforcement officer had probable cause to believe that the defendant had been driving under the influence. McGrath v. State, 277 Ga. App. 825, 627 S.E.2d 866 (2006), cert. denied, 549 U.S. 1223, 127 S. Ct. 1287 (2007).

Trial court erred in granting the defendant's motion to suppress results from a blood test performed prior to any arrest as: (1) the evidence showed that the defendant was involved in a car wreck resulting in serious injury before blood was drawn; and (2) a sheriff's deputy had probable cause to suspect that the defendant had been driving under the influence of alcohol; moreover, contrary to the defendant's assertion, the fact that a loss of consciousness was temporary did not cause the blood test to fall outside the ambit of O.C.G.A. § 40-5-55(c). State v. Umbach, 284 Ga. App. 240, 643 S.E.2d 758 (2007).

As a defendant who sustained a fractured jaw when the defendant's van hit a utility pole was "involved in a traffic accident resulting in serious injury" within the meaning of O.C.G.A. § 40-5-55(c), and the responding officer, who smelled the odor of alcohol on the defendant, had probable cause to believe the defendant was driving under the influence of alcohol, the defendant was properly required to submit to a blood test at the hospital without being arrested. Fowler v. State, 294 Ga. App. 864, 670 S.E.2d 448 (2008), cert. denied, No. S09C0529, 2009 Ga. LEXIS 204 (Ga. 2009).

Following a one-car accident resulting in a fatality and other serious injuries, because a witness who observed the defendant just prior to the accident indicated that the defendant smelled of alcohol, the helicopter crew who transported the defendant also noticed the smell of alcohol, and the accompanying officer observed that the defendant smelled of alcohol and had glassy eyes and slurred speech, the officer had a sufficient basis to obtain a blood sample from the defendant for testing pursuant to O.C.G.A. § 40-5-55(a). Crowe v. State, 314 Ga. App. 527, 724 S.E.2d 831 (2012).

- Accident in which the defendant was involved was not severe enough to trigger the implied consent statute, and, thus, the trial court erred in not suppressing defendant's blood test results. Pilkenton v. State, 254 Ga. App. 127, 561 S.E.2d 462 (2002).

Trial court did not err in denying the defendant's motion to suppress evidence seized by a state trooper who was lawfully investigating a serious injury accident the defendant was involved in as evidence the trooper found, specifically, some steel wool and prescription drugs, when coupled with other information the trooper possessed concerning the nature and cause of the crash, provided sufficient probable cause for the trooper to believe that the defendant was driving under the influence; further, the appeals court agreed that the evidence would have been inevitably discovered. Cunningham v. State, 284 Ga. App. 739, 644 S.E.2d 878 (2007).

Dislocated shoulder was not a serious injury as defined by O.C.G.A. § 40-5-55(c) so as to invoke implied consent to blood and urine tests. Miller v. State, 219 Ga. App. 498, 466 S.E.2d 67 (1995).

- O.C.G.A. § 40-5-67.1(a) provides the temporal connection not expressly set forth in O.C.G.A. § 40-5-55(a); thus, the officer's request for testing is legally viable under the second contingency of O.C.G.A. § 40-5-55(a), the driver's involvement in a traffic accident resulting in serious injuries or fatalities, only if at the time of the request the driver has been involved in a traffic accident that has resulted in serious injuries or fatalities of which law enforcement is aware. Snyder v. State, 283 Ga. 211, 657 S.E.2d 834 (2008).

- In a case involving a fatality, an arrest prior to testing was not required to activate a driver's implied consent. Brown v. State, 218 Ga. App. 469, 462 S.E.2d 420 (1995).

Admissibility

Admission of refusal to submit to blood-alcohol test.

- Admission of a refusal to submit to blood-alcohol chemical test does not violate the constitutional right against self-incrimination. Wessels v. State, 169 Ga. App. 246, 312 S.E.2d 361 (1983).

Court properly allowed into evidence the defendant's refusal to take the state-administered breath test, even though the defendant contended that the defendant was injured and shaken by the accident and was, therefore, incapable of refusing. Hassell v. State, 212 Ga. App. 432, 442 S.E.2d 261 (1994).

Person is required to submit to a test to determine if the person is under the influence of alcohol or other drugs; however, a driver has the right to refuse to take a state administered test subject to the mandate that exercise of the right of refusal shall be admissible in the driver's criminal trial. State v. Leviner, 213 Ga. App. 99, 443 S.E.2d 688 (1994).

When an officer read a defendant an implied consent notice under O.C.G.A. § 40-5-67.1(b) accurately and timely, the notice was valid irrespective of the defendant's claimed inability to understand the notice; thus, even if the defendant's later refusal to provide a breath sample resulted from a failure to comprehend the consequences of the defendant's conduct, the refusal was admissible against the defendant. State v. Stewart, 286 Ga. App. 542, 649 S.E.2d 525 (2007), cert. denied, 2008 Ga. LEXIS 120 (Ga. 2008).

In the defendant's DUI trial, O.C.G.A. § 40-6-391(a)(1), because a breath test was permitted as a search incident to the defendant's DUI arrest, the defendant's refusal to take the breath test was not the exercise of the constitutional right against unreasonable searches and seizures, and evidence of the defendant's refusal was properly admitted under O.C.G.A. § 40-5-67.1(b). Cherry v. State, 345 Ga. App. 409, 813 S.E.2d 408 (2018), cert. denied, No. S18C1104, 2018 Ga. LEXIS 720 (Ga. 2018).

- Trial court did not err in admitting into evidence the results of an intoximeter test performed on defendant when the arresting officer could not recall the precise wording in which the officer gave defendant the implied consent warnings. Cheevers v. Clark, 214 Ga. App. 866, 449 S.E.2d 528 (1994).

- Trial court's grant of the appellee's motion in limine to suppress the results of a breath test was reversed because refusing to allow the appellee to make a phone call did not constitute coercion as there was no evidence to support the trial court's finding that the appellee's consent to the breath test was obtained after a DUI officer told the appellee that a call to the appellee's daughter could not be made unless the appellee took a breath test, so that finding was clearly erroneous. State v. Council, 348 Ga. App. 497, 823 S.E.2d 817 (2019).

- When nonresident defendant's consent to a chemical breath test was based at least in part on an officer's statement that defendant's refusal to take the test would result in a six-month suspension of defendant's out-of-state driver's license, a penalty which the state was unauthorized to carry out, the defendant was deprived of making an informal choice under the implied consent law, and the test results were inadmissible. Deckard v. State, 210 Ga. App. 421, 436 S.E.2d 536 (1993).

In a prosecution for driving under the influence, since the defendant was deprived by the totality of the inaccurate, misleading, and/or inapplicable information given to the defendant by the arresting officer of making an informed choice under the implied consent statute, the defendant's refusal to consent to a urine test was rendered inadmissible. State v. Leviner, 213 Ga. App. 99, 443 S.E.2d 688 (1994).

Police officer's warning to nonresident defendant that "Under O.C.G.A. §§ 40-5-153 and40-5-55, you will lose your privilege to operate a motor vehicle from six to twelve months should you refuse to submit to the designated State administered chemical test" omitted the crucial fact that refusal to take the test would affect defendant's ability to drive "on the highways of this state." Thus, the defendant was deprived of making an informed choice, and the test results were inadmissible overruling, Anthony v. State, 211 Ga. App. 622, 441 S.E.2d 70 (1993) and State v. Reich, 210 Ga. App. 407, 436 S.E.2d 703 (1993). State v. Coleman, 216 Ga. App. 598, 455 S.E.2d 604 (1995).

Substantial evidence supported the trial court's decision to grant the defendant's motion to suppress evidence that was derived as a result of defendant's submission to a breath test during a traffic stop since the defendant's consent to take the test was based, at least in part, on misleading information from the police officer that defendant's out-of-state license could be suspended if the defendant refused to submit to the test; the officer had no authority to implement such a penalty for refusal. State v. Peirce, 257 Ga. App. 623, 571 S.E.2d 826 (2002).

Trial court properly suppressed the alco-sensor tests taken by the defendant because the officer incorrectly informed the defendant that the defendant did not have the right to refuse the test; O.C.G.A. § 40-5-55 gave the defendant the right to withdraw implied consent as pursuant to Ga. Const. 1983, Art. I, Sec. I, Para. XIII, a reasonable person in the defendant's position would have thought the defendant, who was ordered to turn around and place the defendant's hands behind the defendant's back after refusing the test, was being placed under arrest. State v. Norris, 281 Ga. App. 193, 635 S.E.2d 810 (2006), overruled on other grounds by State v. Turnquest, 305 Ga. 758, 827 S.E.2d 865 (2019).

- Motion filed by a defendant to exclude the results of a breath test under the Georgia Implied Consent Law in the defendant's prosecution for driving under the influence under O.C.G.A. § 40-6-391 was properly denied because the defendant was not entitled to the advice of counsel before deciding whether to submit to the test; the right to counsel under U.S. Const., amend. 6 and Ga. Const. 1983, Art. I, Sec. I, Para. XIV did not come into play until the proceedings had reached a critical stage, and the breath test was not such a stage because it did not signal the beginning of a formal adversary hearing and because a lawyer could add little to the warnings required from the officer administering the test by O.C.G.A. § 40-6-392(a)(4). Rackoff v. State, 281 Ga. 306, 637 S.E.2d 706 (2006).

- Implied consent warning properly advised the driver of the purposes for which the driver's blood was to be tested, and the test results were thus admissible in a prosecution for driving with the presence of marijuana in the driver's blood. Radcliffe v. State, 234 Ga. App. 576, 507 S.E.2d 759 (1998).

Because police had probable cause to believe that a defendant was impaired, in violation of O.C.G.A. § 40-6-391, when the defendant caused a vehicle accident that resulted in serious injury of one vehicle occupant and the death of another occupant, based on the defendant's appearance and statements made to medical personnel, the trial court found that the implied consent notice was properly administered and suppression of the state-administered chemical tests was denied; although the defendant was not under arrest at the time the implied consent notice was read, given the serious injuries resulting from the accident and the fact that there was probable cause to believe the defendant was driving while impaired, the defendant's consent to testing was implied pursuant to O.C.G.A. § 40-5-55. Ellis v. State, 275 Ga. App. 881, 622 S.E.2d 89 (2005).

Under Ga. Const. 1983, Art. I, Sec. I, Para. XIII, the defendant could not suppress the evidence of the blood test taken while the defendant was under suspicion for driving under the influence under O.C.G.A. § 40-6-391; because the state complied with the statutory implied consent requirements, the defendant was deemed under the implied consent provisions of O.C.G.A. § 40-5-55 to have given the defendant's consent to a test of the defendant's blood. Meiklejohn v. State, 281 Ga. App. 712, 637 S.E.2d 117 (2006).

Grant of the defendant's motion to suppress was reversed because the trial court erred in concluding that the defendant did not actually consent to the state-administered blood test under the totality of the circumstances as the undisputed evidence in the video recording demonstrated that the defendant's consent was free and voluntary and the 20-minute delay in the officer's implied consent notice resulted from the officer complying with the defendant's request to perform field sobriety tests. State v. Domenge-Delhoyo, 338 Ga. App. 439, 790 S.E.2d 139 (2016).

- Trial court properly granted the defendant's motion to suppress the results of a chemical test of blood based on the undue delay between the arrest, after a traffic stop, and the reading of the implied consent warnings as: (1) the state trooper was presented with numerous opportunities to issue the warnings to the defendant, but did not; and (2) the trial court rejected the trooper's rationale for not reading the defendant the implied consent warnings at any other earlier opportunity, implicitly determining that the trooper's testimony was not credible. State v. Austell, 285 Ga. App. 18, 645 S.E.2d 550 (2007).

- Because at the time an officer requested chemical testing under O.C.G.A. § 40-5-55, the defendant had not been arrested and there was no evidence that a serious injury or fatality had resulted from a collision in which the defendant was involved, request for chemical testing was invalid, although the defendant's passenger died 10 days after the request. Snyder v. State, 283 Ga. 211, 657 S.E.2d 834 (2008).

- Officers had probable cause to request a blood test under the implied consent statute, as the defendant exhibited several signs of impairment, was wholly unaware of the collision the defendant had caused, had slept in the vehicle for a while after leaving the party where alcohol had been served, and, most importantly, possessed drugs. State v. Hughes, 325 Ga. App. 429, 750 S.E.2d 789 (2013), aff'd, 296 Ga. 744, 770 S.E.2d 636 (2015).

Appellate court properly reversed the grant of the defendant's motion to suppress because taken together, a reasonable officer could conclude that driving under the influence was a probable explanation following the fatal accident instead of multiple innocent explanations based on the officers believing that the defendant drove through a red light and caused the accident and that a number of unknown pills were found on the defendant. Hughes v. State, 296 Ga. 744, 770 S.E.2d 636 (2015).

- Order denying suppression of chemical test results admitted against a defendant was proper under the implied consent statute, O.C.G.A. § 40-5-55, given evidence that a formal arrest of the defendant prior to reading the implied consent rights was not warranted, and the defendant was being administered medical care. Hannah v. State, 280 Ga. App. 230, 633 S.E.2d 800 (2006).

Denial of a defendant's suppression motion was affirmed as a victim with a broken kneecap was seriously injured under O.C.G.A. § 40-5-55(c) and the officers had probable cause based on the defendant's statements, the defendant's glossy eyes, and the odor of alcohol on the defendant's person to believe that the defendant was driving under the influence of alcohol; the officer was not required to arrest the defendant before the implied consent reading. Jenkins v. State, 282 Ga. App. 106, 637 S.E.2d 818 (2006).

- Defendant's conviction was not final when the rule against obtaining chemical test results under the implied consent statute without probable cause to arrest a defendant was announced; thus, the new rule applied retroactively to the defendant's case. Costley v. State, 271 Ga. App. 692, 610 S.E.2d 647 (2005).

- Pursuant to O.C.G.A. § 40-5-55(a), the victim submitted to chemical testing of blood and urine; without any factual basis upon which a jury could conclude the victim was a less safe driver at the time of the collision, the trial court did not err in finding that the defendant failed to demonstrate the relevance of the urinalysis to the issue of the proximate cause of the teenagers' deaths from the vehicle accident so as to permit the jury to hear otherwise inadmissible character evidence. Crowe v. State, 259 Ga. App. 780, 578 S.E.2d 134 (2003).

§ 40-6-391 violation. - Trial court erred in denying the defendant's motion to suppress the defendant's chemical test results that were obtained under the implied consent statute, O.C.G.A. § 40-5-55(a), since the defendant was not arrested after a fatal crash for any offense in violation of O.C.G.A. § 40-6-391 nor was there probable cause to arrest the defendant for any such violation. Costley v. State, 271 Ga. App. 692, 610 S.E.2d 647 (2005).

Trial court properly granted defendant's motion to suppress the results of a state-administered blood test showing that the defendant had marijuana in the defendant's system at the time of a fatal car accident as the testing was obtained by an officer without the officer giving the implied consent notice to the defendant. State v. Morgan, 289 Ga. App. 706, 658 S.E.2d 237 (2008), cert. denied, No. S08C1017, 2008 Ga. LEXIS 504 (Ga. 2008).

OPINIONS OF THE ATTORNEY GENERAL

Subsection (a) inapplicable to locomotive engineers.

- Provisions of the Georgia Implied Consent Act do not, by the terms of the Act, apply to locomotive engineers. Any attempt to construe the Act so as to apply to locomotive engineers is barred by federal law, which preempts state law in this area. 1993 Op. Att'y Gen. No. U93-10.

RESEARCH REFERENCES

Am. Jur. 2d.

- 7A Am. Jur. 2d, Automobiles and Highway Traffic, § 124 et seq.

- Mental incapacity as justifying refusal to submit to tests for driving while intoxicated, 76 A.L.R.5th 597.