Implied Consent Rights
State v, Underwood
A07A0576 (criminal case)
June 1, 2007
Adams, Judge.
07 FCDR 1858 (06/22/07)

Underwood was stopped under suspicion of hit and run and admitted to possessing marijuana in Cherokee County north of Atlanta.  The Defendant  was arrested by the Officer for possession of marijuana.  He was not told that he was arrested for DUI although the Officer testified that he also intended to arrest for DUI but did not tell the Defendant that he was arrested for DUI.  The Court of Appeals held that consent is not implied until the Defendant is arrest for DUI and not just if probable cause to arrest for DUI is present.  The Trial Court excluded the breath test result and the Court of Appeals affirmed the Trial Court.  

During a DUI investigation, police must arrest you prior to reading the breath test rights or implied consent rights.  If they do not, the breath test can be suppressed.  As consent is not implied until after arrest, officers can not arrest you for “suspicion” of DUI in Georgia and then take you to the station to see how you do on the sit down “intoxilyzer 5000″ breath test or the state administered chemical test.  The field breath test is not admissible as to a result, only positive or negative.  So comments like "if you pass the state test, I let you go" or "if you blow under 0.08, I won’t charge you with DUI" or "if you blow under 0.08 you are good to go" equal a breath test excluded from evidence.  See, Cooper v. State, 277 Ga. 282 (2003)(holding that chemical testing of a Defendant’s blood in the absence of probable cause violates the Fourth Amendment prohibition against unreasonable searches and seizures and holding that implied consent without probable cause is illegal); Buchanon v. State, 264 Ga. App. 148 (2003)(holding that consent is only implied if a person is arrested for a violation of O.C.G.A. § 40-6-391 and implied consent prior to arrest or without probable cause is improper) Handschuh v. State, 270 Ga. App. 676, 607 S.E.2d 899(Dec 01, 2004)(holding that the statute, as it now stands, provides that consent is implied only if a person is arrested for a violation of OCGA § 40-6-391, while probable cause of DUI may provide the impetus to give the implied consent warning, under OCGA § 40-5-55(a) the implied consent test is only upheld where an arrest has actually been effectuated.) Affirmed by Hough v. State, 279 Ga. 711; 620 S.E.2d 380 (2005)(Holding where accident resulted in serious injuries and officer had probable cause to believe that defendant was driving under influence, officer did not need to arrest defendant before reading of implied consent rights. However, where accident did not involve serious injuries, suspect needed to be under arrest before implied consent rights were read). 

We have won several DUIs using this defense.

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