Many states, including Georgia, have what is called an implied consent law. What the law means is that in obtaining a driver’s license, you consent to taking a chemical test to measure the amount of alcohol in your blood, breath or urine after being lawfully arrested on suspicion of drunk driving.
Not only must the officer who arrests you have probable cause to believe that you were drunk driving, the officer must also read you an implied consent notice explaining that if you do not consent to chemical testing then you lose your license to drive for at least one year, and your licenses suspension can be used against you in your drunk driving criminal case.
However, last month, the Georgia Supreme Court ruled that the implied consent law violates the Fourth Amendment of the state constitution, which mirrors the U.S. Constitution’s protections from unreasonable searches and seizures.
Essentially, police have to have a search warrant before they are able to execute a search, which includes chemical testing, unless there is “exigent circumstances” making the warrant unnecessary. The U.S. Supreme Court has held that a standard DUI arrest is not considered an exigent circumstance.
Therefore, police need a suspect’s consent for the chemical testing, which the Georgia Supreme Court cannot be provided after a suspect is merely read the implied consent notice, which states that the suspect has not choice.
As a result of the decision, it was reported that prosecutors, police and defense lawyers will be working together to come up with a new process that makes sure that suspects voluntary consent to chemical testing without a warrant so that the process is made constitutional.
Keep in mind that even if the suspect refuses the chemical testing, the police can still obtain a warrant to issue the testing, and license suspension is still possible.
As a result of this case, is it possible that the results of chemical testing could be thrown out as evidence, making a conviction much less likely. Talk to an experienced criminal defense lawyer in your area immediately if you have been charged with a DUI and think the ruling may apply to your case.