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What Happens If a Georgia Police Officer Gives an Incorrect “Implied Consent” Warning?


When a Georgia law enforcement officer arrests a driver suspected of DUI, the officer is required to give an “implied consent warning” prior to requesting a breath or blood test to determine the driver’s blood alcohol content (BAC). By law, anyone allowed to drive in Georgia is presumed to give their consent to such tests. If the driver refuses, their license will be automatically suspended for at least a year. That said, the driver still has a constitutional right to refuse a blood test unless the police obtain an appropriate search warrant.

There are actually different implied consent warnings for different groups of drivers. The main reason for this is that the BAC threshold can vary based on a driver’s age and status. For example, while most drivers over the age of 21 are considered legally intoxicated with a BAC of 0.08 percent or higher, it is just 0.02 percent for drivers under the age of 21. And for drivers operating a commercial vehicle, such as an 18-wheeler, the BAC threshold is 0.04 percent.

Georgia Court of Appeals Rejects Third Appeal in DUI Case

Is a DUI suspect’s consent to a chemical test valid if they received the incorrect notice? The Georgia Court of Appeals recently addressed this question. The case, Blazek v. State, was actually before the appellate court for the third time. A Gwinnett County police officer arrested the defendant, a commercial driver operating an 18-wheeler, on suspicion of DUI. The officer incorrectly read the implied warning for non-commercial adult drivers–i.e., the legal limit was 0.08 percent–and the defendant consented to a blood test, which showed had a BAC of 0.186 percent.

The first appeal addressed the fact the officer failed to give a Miranda warning. In 2019, the Georgia Supreme Court overturned a prior decision that required such a warning. So the Court of Appeals reversed the trial court’s decision to suppress the test results, which was based on the overturned precedent.

The case then proceeded to trial. A jury found the defendant guilty of DUI. On the second appeal, the Court of Appeals again reversed. This time it held the trial judge erred by not considering whether or not the defendant’s consent was voluntary given he received an incorrect implied consent warning. The appellate court instructed the trial judge to “consider whether [the defendant’s] consent to a breath test was voluntary under a totality of the circumstances.”

The trial court subsequently found the defendant’s consent was voluntary. On the third appeal, the Court of Appeals upheld the trial judge. Taking into account factors such as the defendant’s age, education, and intelligence, the appellate court was satisfied the defendant’s consent was voluntary, notwithstanding the technically incorrect warning. Put another way, the appellate court said that even if the officer had read the correct warning, it would not likely have changed the defendant’s response.

Contact Hawkins Spizman Trial Lawyers Today

Remember, you always have a right to refuse to speak with the police or turn over potentially incriminating evidence unless the police obtain a warrant. And if you are arrested and charged with drunk driving, it is important to call an experienced Georgia Board certified DUI lawyer as soon as possible. Contact Hawkins Spizman Trial Lawyers today to schedule a free consultation. We serve clients throughout Georgia including Atlanta, Dunwoody, Alpharetta, Cobb County, Fulton County, Gwinnett County, Johns Creek and Sandy Springs.


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