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2018 Georgia Code 40-5-67 | Car Wreck Lawyer

Link to State of Georgia Official Statute 2018 Georgia Code Annotated (sourced from legal.resource.org)
O.C.G.A. 40-5-67 Case Law from Google Scholar Amendments to OCGA 40-5-67

TITLE 40 MOTOR VEHICLES AND TRAFFIC

Section 5. Drivers' Licenses, 40-5-1 through 40-5-179.

ARTICLE 3 CANCELLATION, SUSPENSION, AND REVOCATION OF LICENSES

40-5-67. Seizure and disposition of driver's license of persons charged with driving under the influence; issuance of temporary driving permit; disposition of cases.

  1. Whenever any resident or nonresident person is charged with violating Code Section 40-6-391, the law enforcement officer shall take the driver's license of the person so charged. The driver's license shall be attached to the court's copy of the uniform traffic citation and complaint form and shall be forwarded to the court having jurisdiction of the offense. A copy of the uniform traffic citation and complaint form shall be forwarded, within ten days of issue, to the department. Taking the driver's license as required in this Code section shall not prohibit any law enforcement officer or agency from requiring any cash bond authorized by Article 1 of Chapter 6 of Title 17.
    1. At the time the law enforcement officer takes the driver's license, the officer shall issue a temporary driving permit to the person as follows:
      1. If the driver refuses to submit to a test or tests to determine the presence of alcohol or drugs as required in Code Section 40-5-55, the officer shall issue a 45 day temporary driving permit;
      2. If the driver's license is required to be suspended under Code Section 40-5-67.1, the officer shall issue a 45 day temporary driving permit; or
      3. If the test or tests administered pursuant to Code Section 40-5-55 indicate an alcohol concentration in violation of Code Section 40-6-391 but less than the level for an administrative suspension of the license under subsection (c) of Code Section 40-5-67.1, the officer shall issue a 180 day temporary driving permit.
    2. A temporary driving permit issued under this subsection shall be valid for the stated period or until the person's driving privilege is suspended or revoked under any provision of this title. The department, at its sole discretion, may delay the expiration date of such temporary driving permit, but in no event shall this delay extend beyond the date when such person's driving privilege is suspended or revoked under any provision of this title. The department shall by rules and regulations establish the conditions under which the expiration of a temporary driving permit may be delayed.
    1. If the person is convicted of violating or enters a plea of nolo contendere to a charge of violating Code Section 40-6-391, the court shall, within ten days, forward the person's driver's license and the record of the disposition of the case to the department. At this time, the court shall also require the person to surrender the temporary driving permit issued pursuant to subsection (b) of this Code section.
    2. If the person is not convicted of violating and does not enter a plea of nolo contendere to a charge of violating Code Section 40-6-391, and the court is in possession of the driver's license, the court shall return the driver's license to the person unless the license is in suspension for any other offense, in which case the court shall forward the license to the department for disposition.

(Code 1981, §40-5-69, enacted by Ga. L. 1983, p. 1000, § 1; Code 1981, §40-5-67, as redesignated by Ga. L. 1990, p. 2048, § 4; Ga. L. 1992, p. 2564, § 5; Ga. L. 1994, p. 1600, § 2; Ga. L. 1997, p. 760, § 19; Ga. L. 2000, p. 951, § 5-28; Ga. L. 2016, p. 323, § 1-3/HB 205.)

The 2016 amendment, effective July 1, 2017, designated the existing provisions of the introductory paragraph of subsection (b) as paragraph (b)(1); redesignated former paragraphs (b)(1) through (b)(3) as present subparagraphs (b)(1)(A) through (b)(1)(C), respectively; substituted "45 day" for "30 day" in subparagraphs (b)(1)(A) and (b)(1)(B); designated the ending paragraph of subsection (b) as paragraph (b)(2), and, in paragraph (b)(2), in the first sentence, substituted "A temporary" for "This temporary" at the beginning, and inserted "issued under this subsection", substituted "such temporary" for "the temporary" in the second sentence, and substituted "expiration of a temporary driving permit" for "expiration of the temporary permit" in the last sentence.

Editor's notes.

- Ga. L. 1994, p. 1600, § 11, not codified by the General Assembly, provides that the provisions of the Act shall apply only to cases arising out of arrests occurring on or after January 1, 1995, except that the provisions amending subsection (a) of Code Section 40-6-391.1, restricting the acceptance of a plea of nolo contendere to a charge of violating Code Section 40-6-391, and the provisions amending subsection (c) of Code Section 40-6-391, changing the criminal penalties for violations of the section, shall become effective July 1, 1994, and except that the provisions amending subsection (g) of Code Section 40-5-67.1, relating to the time for requesting a hearing on an administrative suspension, the stay of a suspension pending such hearing, and the early termination of an administrative suspension under certain conditions shall apply to cases pending on July 1, 1994.

Ga. L. 1997, p. 760, § 1, not codified by the General Assembly, provides: "This Act shall be known and may be cited as the 'Teen-age and Adult Driver Responsibility Act'."

Ga. L. 1997, p. 760, § 27, not codified by the General Assembly, provides that the amendment made by the Act to this Code section shall apply to offenses committed on or after July 1, 1997, and shall not apply to offenses committed prior to that date.

Law reviews.

- For article commenting on the 1997 amendment of this Code section, see 14 Ga. St. U.L. Rev. 203 (1997). 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).

JUDICIAL DECISIONS

Double jeopardy.

- Suspension of a driver's license at an administrative hearing is not punishment, nor is the hearing a prosecution for the purposes of double jeopardy. Kirkpatrick v. State, 219 Ga. App. 307, 464 S.E.2d 882 (1995).

Equal protection claims.

- Defendant's constitutional claims to the implied consent statutes were without merit since the defendant, a Spanish speaking person, was not similarly situated to a hearing impaired person and, although similarly situated to an English speaking person, there was a rational basis for requiring the implied consent warnings to be read in English. Rodriguez v. State, 275 Ga. 283, 565 S.E.2d 458 (2002).

DUI arrestee had no standing to challenge administrative suspension procedure.

- Plaintiff, whose license was confiscated by an officer at the time of arrest for DUI and who was issued a citation allowing the plaintiff to drive pending resolution of the plaintiff's case, did not have standing to challenge the administrative suspension procedures established by O.C.G.A. § 40-5-67.1. McGraw v. State, 230 Ga. App. 843, 498 S.E.2d 314 (1998).

Duty of court to seize license and temporary permit pending appeal.

- Upon conviction for driving under the influence, the defendant was properly required to surrender the defendant's driver's license and temporary permit to the trial court pending appeal; the seizure and forwarding of the license to the Department of Public Safety was not part of the defendant's sentence or a condition of the defendant's bond but a requirement imposed by statute on the court. Wells v. State, 212 Ga. App. 15, 440 S.E.2d 692 (1994).

Due process was not violated by the failure to return the defendant's plastic license following a license suspension hearing which was resolved in defendant's favor since the rationale for confiscation of the license in the first place was a pending charge under O.C.G.A. § 40-6-391. Wright v. State, 228 Ga. App. 717, 492 S.E.2d 581 (1997).

OPINIONS OF THE ATTORNEY GENERAL

Editor's notes.

- In light of the similarity of the statutory provisions, opinions under former Code Section 40-5-69, which was renumbered as Code Section 40-5-67 by Ga. L. 1990, p. 2048, § 4, are included in the annotations for this Code section.

Nonresident convicted of driving under the influence.

- Georgia law requires that, when a non-resident is convicted of driving under the influence, the court forward the non-resident's driver's license to the Georgia Department of Public Safety with the license to be forwarded to the non-resident's home state along with the record of conviction and record of any action taken by the Department of Public Safety. 1986 Op. Att'y Gen. No. U86-15 (decided under former § 40-5-69).

Georgia law requires that, when a non-resident person is charged with driving under the influence, the arresting officer is to take the driver's license, attach the license to the court's copy of the citation, and forward the license to the appropriate court as would be done with a Georgia driver. 1986 Op. Att'y Gen. No. U86-16 (decided under former § 40-5-69).

RESEARCH REFERENCES

Defense to Charge of Driving Under the Influence of Alcohol, 17 POF2d 1.

Negligent Failure to Detain Intoxicated Motorist, 1 POF3d 545.

Proof and Disproof of Alcohol-Induced Driving Impairment Through Breath Alcohol Testing, 4 POF3d 229.

Proof and Disproof of Alcohol-Induced Driving Impairment Through Evidence of Observable Intoxication and Coordination Testing, 9 POF3d 459.

Cases Citing O.C.G.A. § 40-5-67

Total Results: 20  |  Sort by: Relevance  |  Newest First

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Elliott v. State, 824 S.E.2d 265 (Ga. 2019).

Cited 196 times | Published | Supreme Court of Georgia | Feb 18, 2019 | 305 Ga. 179

...After smelling the odor of alcohol and observing several signs of impairment, including several clues during a field sobriety test, the officer arrested Elliott for DUI and other traffic offenses and read her the statutorily mandated implied consent notice. See OCGA § 40-5-67.1 (b).2 Elliott replied that she was overwhelmed and unsure of what was happening, so the officer explained why he stopped her, why he asked her to perform field sobriety tests, why he read her the implied consent notice following her arre...
...Now that we have concluded that Olevik should stand, we must address the consequence of Olevik that this case presents: does Paragraph XVI prohibit the State from admitting into evidence Elliott's exercise of her constitutional right to refuse to submit to a breath test, as OCGA §§ 40-5-67.1 (b) and 40-6-392 (d) say the State may do? IV. Admission of evidence that a defendant refused to submit to a chemical test of breath pursuant to OCGA § 40-5-67.1 (b) violates Paragraph XVI of the Georgia Constitution. Our reaffirmance of Olevik means that Elliott's refusal to submit to a breath test fell within the protections of Paragraph XVI....
...We find nothing sufficient to rebut the presumption that the 1983 Constitution incorporated this meaning and thus conclude that Paragraph XVI generally prohibits admission of a defendant's pretrial refusal to speak or act. And we conclude that OCGA §§ 40-5-67.1 (b) and 40-6-392 (d) violate the Georgia Constitution by allowing the admission of a defendant's refusal to submit to a breath test to prove that the defendant had been drinking alcohol. A....
...Having considered the text of Paragraph XVI and the context in which it was enacted, as well as all of the arguments made by the parties and the amici, we conclude that Paragraph XVI precludes admission of evidence that a suspect refused to consent to a breath test.31 Consequently, we conclude that OCGA §§ 40-5-67.1 (b) and 40-6-392 (d) are unconstitutional to the extent that they allow a defendant's refusal to submit to a breath test to be admitted into evidence at a criminal trial. **224We reverse the trial court's denial of Elliott's motion to s...
...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? OCGA § 40-5-67.1 (b) (2). This number does not include the 1776 Rules and Regulations of the Colony of Georgia, the first governing document during the revolutionary period (although adopted three months before the signing of the Declaration of Independence)....
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Olevik v. State, 302 Ga. 228 (Ga. 2017).

Cited 147 times | Published | Supreme Court of Georgia | Oct 16, 2017 | 806 S.E.2d 505

..., failure to maintain a lane, and no brake lights.1 Olevik appeals from his DUI conviction, challenging the denial of his motion to suppress the results of a state-administered breath test on the grounds that the implied consent notice statute, OCGA § 40-5-67.1 (b), is unconstitutional on its face and as applied to him....
...at a person’s driving privilege will be suspended if he or she refuses to take a chemical test after being arrested for a DUI offense or having been involved in a traffic accident resulting in serious injuries or fatalities. OCGA §§ 40-5-55 (a); 40-5-67.1 (d)....
...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? OCGA § 40-5-67.1 (b) (2). (b) Oleuik’s traffic stop. The facts are largely undisputed....
...s not a constitutional right.11 We next must decide whether Olevik’s claims prevail under the applicable law. 3. We reject Olevik’s facial and, “as-applied” challenges to the implied consent notice. Olevik raises several challenges to OCGA § 40-5-67.1 (b) in claiming that he did not validly consent to the breath test....
...We reject Olevik’s facial challenges because the statute is not per se coercive. We reject his as-applied claim because he offers no basis for a finding of coercion beyond the language of the notice. (a) Olevik’s facial challenges fail. Olevik’s argument that OCGA § 40-5-67.1 (b) is facially coercive is essentially a claim that the implied consent notice is so misleading and inaccurate that no person can validly consent to a state-administered test once the notice has been read....
...*249drivers have agreed to submit to chemical tests as a condition of having a driver’s license. If you don’t submit to a test, you lose your license. The implied consent notice also refers to the testing as “required” twice more. See OCGA § 40-5-67.1 (b) (2)....
...will result in a license suspension and that a test result indicating a BAC of 0.08 grams or more only may result in a suspension. Olevik is correct that this information is not entirely accurate, as suspensions are mandated in either case. See OCGA § 40-5-67.1 (c) (providing that the Department of Public Safety “shall suspend” the license of a driver (21 or older) who has an alcohol concentration of 0.08 grams or more), (d) (the department “shall suspend” for a period of one year the license of a person who refuses to submit to a chemical test)....
...spension is likely to play a dispositive role in a reasonable person’s decision; when arrested and facing jail, the relative likelihood of also facing a civil administrative penalty may well recede into the background. Olevik also challenges OCGA § 40-5-67.1 (b)’s failure to advise suspects that the test results will be used against him at trial....
...Neville, 459 U.S. at 563. Olevik’s facial claim rests on the premise that the notice would deceive a reasonable person. On the record before us, although Olevik points out deficiencies in the implied consent notice,14 there is no evidence that OCGA § 40-5-67.1 (b) creates widespread confusion about drivers’ rights and the consequences for refusing to submit to a chemical test or for taking and failing that test....
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State v. Herrera-Bustamante, 818 S.E.2d 552 (Ga. 2018).

Cited 55 times | Published | Supreme Court of Georgia | Aug 20, 2018 | 304 Ga. 259

...ndicated impairment. At that point, Officer York arrested Herrera-Bustamante for DUI and put him in the back of the patrol car. The officer then read Herrera-Bustamante the statutory implied consent notice for drivers age 21 and older found in OCGA § 40-5-67.1 (b) (2) and asked if he would consent to a breathalyzer test....
...OCGA § 40-6-392 (d) says: "In any criminal trial, the refusal of the defendant to permit a chemical analysis to be made of his blood, breath, urine, or other bodily substance at the time of his arrest shall be admissible in evidence against him." And the final paragraph of OCGA § 40-5-67.1 (b), which sets forth the implied consent notices to be read to various classes of drivers, says: "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, ......
...stify that he **262refused to take a breathalyzer test, because the admission of such refusal evidence violates Paragraph XVI. For the first time here, but as a natural extension of his core contention, he also argues that OCGA §§ 40-6-392 (d) and 40-5-67.1 (b) are *556unconstitutional....
...This plain-error review is limited to the trial court's evidentiary rulings, that is, "ruling[s] which admit[ ] or exclude[ ] evidence," OCGA § 24-4-103 (a). See Gates, 298 Ga. at 328-329, 781 S.E.2d 772. Thus, the facial challenge to the constitutionality of OCGA §§ 40-6-392 (d) and 40-5-67.1 (b) that Herrera-Bustamante raises for the first time on appeal is beyond its scope. "To show plain error, [Herrera-Bustamante] must point to an error that was not affirmatively waived, the error must have been clear and not open to reason...
...Moreover, as Herrera-Bustamante acknowledges, there is existing Georgia law that cuts squarely against his claim of inadmissibility of evidence that he refused to take a DUI chemical test-Court of Appeals cases like Wessels v. State, 169 Ga. App. 246, 246-247, 312 S.E.2d 361 (1983), along with OCGA §§ 40-6-392 (d) and **26640-5-67.1 (b), statutes that have been applied in many cases for many years and whose constitutionality cannot be properly questioned in this case, as discussed above. For these reasons, whatever questions Olevik may raise regarding the admission of...
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State v. Turnquest, 827 S.E.2d 865 (Ga. 2019).

Cited 25 times | Published | Supreme Court of Georgia | May 6, 2019

...In March 2017, defendant Stephen Turnquest was involved in a single-vehicle accident. The responding officer arrested Turnquest for DUI. After arresting Turnquest and before asking him to submit to a breath test, the officer read the age-appropriate Georgia implied consent notice pursuant to OCGA § 40-5-67.1 (b) (2) but did not give Miranda warnings....
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State v. Turnquest, 305 Ga. 758 (Ga. 2019).

Cited 23 times | Published | Supreme Court of Georgia | May 6, 2019

...In March 2017, defendant Stephen Turnquest was involved in a single-vehicle accident. The responding officer arrested Turnquest for DUI. After arresting Turnquest and before asking him to submit to a breath test, the officer read the age-appropriate Georgia implied consent notice pursuant to OCGA § 40-5-67.1 (b) (2) but did not give Miranda warnings....
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Adams v. State, 829 S.E.2d 126 (Ga. 2019).

Cited 21 times | Published | Supreme Court of Georgia | Jun 3, 2019 | 306 Ga. 1

...hol to the extent that he was less safe to drive, failure to maintain lane, and following too closely. He appealed, asserting as error the admission of evidence regarding a stipulation in an administrative license suspension hearing pursuant to OCGA § 40-5-67.1 and evidence of a 2011 arrest for DUI....
...In July 2016, after a one-vehicle accident, Adams was arrested for DUI and other offenses and declined to take the state-administered blood test. The trooper who arrested Adams then initiated an administrative suspension of Adams' license pursuant to OCGA § 40-5-67.1....
...At an administrative hearing in the suspension proceeding, the trooper and Adams' counsel executed a written agreement, which the trooper testified was a "joint motion to withdraw the license suspension."1 This agreement provided that the trooper would withdraw the sworn report made pursuant to OCGA § 40-5-67.1, in return for Adams' promise to enter a guilty plea to the underlying DUI charge....
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Ammons v. State, 880 S.E.2d 544 (Ga. 2022).

Cited 20 times | Published | Supreme Court of Georgia | Nov 2, 2022 | 315 Ga. 149

...App. 565, 567-569 (2) (610 SE2d 74) (2004). Finally, the trial court determined that, by allowing a defendant’s refusal to consent to a warrantless blood test as evidence of guilt in a criminal case, Georgia’s implied consent statutes, OCGA §§ 40-5-67.1 and 40-6- 392, do not violate the Privileges and Immunities Clause, the Due Process Clause, or the Search and Seizure Clause of the Georgia Constitution....
...Does the Georgia Constitution’s guarantee of the right against compelled self-incrimination apply to field sobriety tests, such that evidence that the defendant refused to submit to such tests is inadmissible? 3. Do OCGA §§ 40-5-67.1 or 40-6-392 violate the Georgia Privileges and Immunities Clause? Ammons timely appealed....
...consent statutes violate Article I, Section I, Paragraph VII of the Georgia Constitution of 1983. Finally, Ammons contends that, by allowing her refusal to consent to a blood test to be introduced as evidence at her trial, Georgia’s implied consent statutes, OCGA §§ 40-5-67.1 (b) and 40-6- 392, violate Article I, Section I, Paragraph VII of the Georgia Constitution of 1983 (“Paragraph VII”).10 As we understand it, her theory is that she invoked her right under the Georgia Constitution’s 10...
...In the present case, however, Ammons has not met her heavy burden of overcoming the presumption that the statutory evidentiary rule regarding blood test refusals in DUI cases is constitutional, so we must reject her Paragraph VII challenge to OCGA §§ 40-5-67.1 (b) and 40-6-392 (d). 44 PINSON, Justice, concurring. I concur in the majority opinion, including its faithful application of this Court’s recent decisions in Olevik v....
...The General Assembly may derogate common-law rights by statute, see Holland v. Caviness, 292 Ga. 332, 337 (737 SE2d 669) (2013), which is just what it attempted to do in the DUI context by requiring drivers to submit to chemical tests or face legal consequences for refusing to do so. See, e.g., OCGA §§ 40-5-67.1 (c), (d) (describing the circumstances under which a person who submits, or refuses to submit, to a chemical test will have his or her driver’s license suspended); 40-6- 392 (b) (providing that the results of a chemical analysis of...
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Zilke v. State, 299 Ga. 232 (Ga. 2016).

Cited 15 times | Published | Supreme Court of Georgia | Jun 20, 2016 | 787 S.E.2d 745

...court of this state except to prove violations of this part.”); OCGA § 24-8-824 (“To make a confession admissible, it shall have been made voluntarily, without being induced by another by the slightest hope of benefit or remotest fear of injury.”); OCGA § 40-5-67.1 (b) (“If any such notice [concerning implied consent] 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 ....
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State v. Randall, 897 S.E.2d 444 (Ga. 2024).

Cited 9 times | Published | Supreme Court of Georgia | Jan 17, 2024 | 318 Ga. 79

...198 (880 SE2d 134) (2022) (“Randall I”), this Court vacated the trial court’s order suppressing the same evidence at issue in this case based on our conclusion that the court unnecessarily resolved Randall’s constitutional challenge to the admissibility of blood test refusal evidence and to OCGA § 40-5-67.1 (b)....
...the blood test, arguing that the admission of evidence of his 2 exercising his constitutional right to refuse a blood test violated his due process rights under the federal and state Constitutions. Randall further argued that, to the extent OCGA §§ 40-5-67.1 (b) and 40-6-392 (d), the implied consent statutes, allow the introduction of such evidence, they also violate due process....
...3 held that “the constitutional ruling by the trial court on the admissibility of blood test refusal evidence [was] unnecessary.” 315 Ga. at 200-201 (1). We also held that, because Randall did not challenge the constitutionality of OCGA § 40-5-67.1 (b) on the basis that it chilled his right to refuse a warrantless search, the trial court erred by expanding the scope of its review to the constitutionality of the statute....
...determined they had with respect to the prior motion to suppress in Randall I. Then, employing the same reasoning verbatim as in its first suppression order, see Randall I, 315 Ga. at 199, the trial court held: To the extent that OCGA § 40-5-67.1 informs a person that refusing to submit to blood testing may be offered as evidence against them at trial, it needlessly and unnecessarily chills a defendant’s exercise of the constitutional right to refuse a warrantless search....
...To the extent that OCGA § 40-6-392 (d) allows that evidence to be admitted at trial, it impermissibly and unduly burdens a defendant’s exercise of the right to refuse warrantless blood testing. Therefore, to that extent, OCGA § 40-5-67.1 and [OCGA] § 40-6-392 (d) violate a defendant’s due process rights guaranteed by both the United States and Georgia Constitutions. The trial court expressly noted that, in light of its ruling on the constitutional iss...
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Awad v. State, 868 S.E.2d 219 (Ga. 2022).

Cited 8 times | Published | Supreme Court of Georgia | Jan 19, 2022 | 313 Ga. 99

...We granted Awad’s petition for certiorari to determine whether the trial court erred in concluding that the State was not permitted to introduce into evidence Awad’s refusal to provide a urine sample on the ground that admitting such evidence OCGA § 40-5-67.1 (b) (2) (2016). 2 Although it was stipulated below that the police officer asked Awad to submit to a urine test, the record did not reveal the details of how Awad’s urine would have been collected....
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State v. Randall, 880 S.E.2d 134 (Ga. 2022).

Cited 6 times | Published | Supreme Court of Georgia | Oct 25, 2022 | 315 Ga. 198

...xited the vehicle. The officer arrested Randall for DUI, read Randall the statutory implied consent notice for drivers aged 21 years and over,2 and requested that Randall submit to a blood test. Randall refused 2 See OCGA §§ 40-5-55 (a); 40-5-67.1 (b) (2). 2 to submit to a blood test, and no test was performed. In Randall’s brief in support of his motion to suppress in the trial court, he argued that using a defendant’s exercise of...
...and the Georgia Constitution. After a hearing, the trial court granted in part Randall’s motion to suppress and excluded any evidence of his refusal to consent to the requested blood test.3 The trial court reasoned that, [t]o the extent that OCGA § 40-5-67.1 informs a person that refusing to submit to blood testing may be offered as evidence against them at trial, it needlessly and unnecessarily chills a defendant’s exercise of the constitutional right to refuse a warrantless search....
...To the extent that OCGA § 40-6-392 (d) allows that evidence to be admitted at trial, it impermissibly and unduly burdens a defendant’s exercise of the right to refuse warrantless blood testing. Therefore, to that extent, OCGA § 40-5-67.1 and OCGA § 40-6-392 (d) violate a defendant’s due 3 The trial court denied Randall’s motion to suppress evidence gathered during the traffic stop other than his refusal of the requested breath test....
...The State maintains that its purpose in introducing evidence that Randall refused a blood test is to explain to the jury why the State is not offering test results into evidence.5 4 Both sections provide that blood test refusal evidence is admissible against a defendant at trial. See OCGA §§ 40-5-67.1 (b) (If a statutory implied consent notice “is used by a law enforcement officer to advise a person of his or her rights regarding the administration of chemical testing, ....
...on the merits can be reached without doing so.” State v. Brannan, 267 Ga. 315, 317 (477 SE2d 575) (1996) (citation omitted). Here, the parties’ briefing in the trial court led the trial court to issue a ruling on the merits of Randall’s argument that, to the extent that OCGA §§ 40-5-67.1 (b) and 40-6-392 (d) allow for the introduction of evidence against an accused in a DUI prosecution, they violate state and federal due process guarantees....
...at the proper time. 2. As noted above, in addition to ruling on the constitutionality of admitting blood test refusal evidence against a defendant, the trial court ruled that, to the extent that the implied consent notices set out in OCGA § 40-5-67.1 (b) inform a person that refusing to submit to blood testing may be offered as evidence against him at trial, OCGA § 40-5-67.1 (b) needlessly and unnecessarily chills a defendant’s exercise of the constitutional right to refuse a warrantless search.8 Although Randall challenged the 8 OCGA § 40-5-67.1 (b) provides: “At the time a chemical test or tests are requested [of a person suspected of DUI], the arresting officer shall select and read to the person the appropriate implied consent notice” set out in the Code section....
...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. 8 constitutionality of OCGA § 40-5-67.1 (b) in the trial court on the grounds that allowing admission of his refusal to submit to the blood test to show consciousness of guilt violated his constitutional rights, see Division 1, supra, Randall did not challenge the statute o...
...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 test)? OCGA § 40-5-67.1 (b) (2). 9 Decided October 25, 2022 — Reconsideration denied November 17, 2022. Implied consent; constitutional question....
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Fazio v. State, 302 Ga. 295 (Ga. 2017).

Cited 5 times | Published | Supreme Court of Georgia | Oct 16, 2017 | 806 S.E.2d 544

...toxication, including slurred speech and the odor of alcohol. When Fazio failed several field sobriety tests, the officer placed Fazio under arrest, handcuffed him, and read him the following Georgia “[i]mplied consent notice,” as stated in OCGA § 40-5-67.1 (b) (2): 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....
...At no point during the testing did Fazio express any objections or unwillingness to take the tests. 2. On appeal, Fazio makes several arguments as to why his motion to suppress should have been granted. All are without merit. First, he argues that the implied consent notice statute, OCGA § 40-5-67.1 (b), violates the constitutional prohibition of unreasonable searches and seizures under the Fourth Amendment and its Georgia analogue found in Article I, Section I, Paragraph XIII of the Georgia Constitution of 1983.1 But in another case decided today, Olevik v....
...He asserts that the statute does not fully and accurately inform a suspect of his rights or the consequences of his refusal to consent to a breath test. But we consider and reject just such an argument in Olevik, holding that, although the statute may contain some deficiencies, “there is no evidence that OCGA § 40-5-67.1 (b) creates widespread confusion about drivers’ rights and the consequences for refusing to submit to a chemical test or for taking and failing that test.” See Olevik, 302 Ga....
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Schmitz v. State, 302 Ga. 473 (Ga. 2017).

Cited 4 times | Published | Supreme Court of Georgia | Oct 30, 2017 | 807 S.E.2d 361

MELTON, Presiding Justice. Following a May 18, 2015 traffic stop, John F. Schmitz was arrested for DUI and failure to maintain lane. The arresting officer read Schmitz the required implied consent warning in accordance with OCGA § 40-5-67.1 (b) (2),1 and Schmitz agreed to a test of his deep lung breath, which revealed that Schmitz’s blood alcohol concentration was above the legal limit. Prior to going to trial on the charges against him, Schmitz filed initial and amended motions to suppress, arguing that OCGA § 40-5-67.1 (b) (2) was unconstitutional both on its face and as applied to him....
...16. Following a September 15, 2016 bench trial, Schmitz was found guilty ofDUIper se, DUI less safe, and failure to maintain lane. Schmitz appeals his conviction,2 arguing that the trial court erred in denying his motion to suppress and finding OCGA § 40-5-67.1 (b) (2) to be constitutional, as his consent to a search of his deep lung breath violated the Due Process Clause of the Fifth and Fourteenth Amendments to the U.S....
...Constitution and Art. I, Sec. I, Par. I of the Georgia Constitution of 1983 (“No person shall be deprived of life, liberty, or property except by due process of law”). However, because this Court has recently rejected identical constitutional challenges to OCGA § 40-5-67.1 (b) (2) in Olevik v. State, 302 Ga. 228 (806 SE2d 505) (2017), Schmitz’s current claims have no merit, and we affirm. Schmitz contends that OCGA § 40-5-67.1 (b) (2), on its face and as applied to him, violates Due Process because the warning in the statute, by itself, is false and misleading to the point where an *474individual’s consent to a breath test can never be considered to be voluntary....
...ot impose criminal penalties for refusing to submit to chemical testing .. . [and the statute is not] unconstitutional in all of its applications.... [Although [there may be] deficiencies in the implied consent notice, there is no evidence that OCGA § 40-5-67.1 (b) creates widespread confusion about drivers’ rights and the consequences for refusing to submit to a chemical test or for taking and failing that test.......
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La Anyane v. State, 321 Ga. 312 (Ga. 2025).

Cited 3 times | Published | Supreme Court of Georgia | Mar 4, 2025

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Barrow v. Mikell Et Al., 298 Ga. 429 (Ga. 2016).

Cited 2 times | Published | Supreme Court of Georgia | Feb 1, 2016 | 782 S.E.2d 439

...Court of Appeals, and we now reverse. Our statutory law permits judicial review of “any decision rendered by the [D]epartment,” so long as the petition for review is filed within thirty days of the decision: Except as provided in subsection (h) of Code Section 40-5-67.1 and subsection (h) of Code Section 40-5-64, any decision rendered by the department shall be final unless the aggrieved person shall desire an appeal....
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State v. Dias, 914 S.E.2d 291 (Ga. 2025).

Cited 1 times | Published | Supreme Court of Georgia | Mar 13, 2025 | 321 Ga. 260

...constitutionality of an Act of the General Assembly unless it clearly appears in the record that the point was directly and properly made in the court below and distinctly passed on by the trial judge.” (citation and punctuation omitted)). 3 See OCGA §§ 40-5-55 (a); 40-5-67.1 (b) (2). 2 search involved in a state-administered blood test and that, in refusing the test, she “was simply invoking her right under the Fourth Amendment not to be subjected to an unlawful...
...right against self-incrimination under Paragraph XVI, the trial court erred. In Elliott, we held only that “Paragraph XVI precludes admission of evidence that a suspect refused to consent to a breath test. Consequently, we conclude that OCGA §§ 40-5-67.1 (b) and 40-6-392 (d) are unconstitutional to the extent that they allow a defendant’s refusal to submit to a breath test to be admitted into evidence at a criminal trial.” Elliott, 305 Ga....
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Elliott v. State, 305 Ga. 179 (Ga. 2019).

Cited 1 times | Published | Supreme Court of Georgia | Feb 18, 2019

...After smelling the odor of alcohol and observing several signs of impairment, including several clues during a field sobriety test, the officer arrested Elliott for DUI and other traffic offenses and read her the statutorily mandated implied consent notice. See OCGA § 40-5-67.1 (b).2 Elliott replied that she was overwhelmed and unsure of what was happening, so the officer explained why he stopped her, why he asked her to perform field sobriety tests, why he read her the implied consent notice following her a...
...e, 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? OCGA § 40-5-67.1 (b) (2). 4 evidence against her at trial....
...Now that we have concluded that Olevik should stand, we must address the consequence of Olevik that this case presents: does Paragraph XVI prohibit the State from admitting into evidence Elliott’s exercise of her constitutional right to refuse to submit to a breath test, as OCGA §§ 40-5-67.1 (b) and 40-6-392 (d) say the State may do? IV. Admission of evidence that a defendant refused to submit to a chemical test of breath pursuant to OCGA § 40-5-67.1 (b) violates Paragraph XVI of the Georgia Constitution. Our reaffirmance of Olevik means that Elliott’s refusal to submit to a breath test fell within the protections of Paragraph XVI....
...We find nothing sufficient to rebut the presumption that the 1983 Constitution incorporated this meaning and thus conclude that Paragraph XVI generally prohibits admission of a defendant’s pretrial refusal to speak or act. And we conclude that OCGA §§ 40-5-67.1 (b) and 40-6-392 (d) violate the Georgia Constitution by allowing the admission of a defendant’s refusal to submit to a breath test to prove that the defendant had been drinking alcohol. A....
...at 232, 233 n.2 (“Nothing we say here should be understood as casting any doubt on Strong’s” holding that Paragraph XVI was not implicated by a blood test.). 90 of evidence that a suspect refused to consent to a breath test.31 Consequently, we conclude that OCGA §§ 40-5-67.1 (b) and 40-6-392 (d) are unconstitutional to the extent that they allow a defendant’s refusal to submit to a breath test to be admitted into evidence at a criminal trial. We reverse the trial court’s denial of Elliott’s motion to suppress. Judgment reversed....
...Olevik, the scope of these decisions is limited to chemical tests of a driver’s breath; they do not apply to tests of a driver’s blood. Also unaffected is the core component of the implied consent enforcement scheme: the administrative license suspension provided by OCGA § 40-5-67.1 (c) and (d)....
...sent law remains in force, notwithstanding the Court’s opinions today and in Olevik. That being said, these decisions affect significant portions of the implied consent law. The statements in the implied consent notices set forth in OCGA § 40-5-67.1 (b) — that Georgia law “requires” the driver to submit to breath testing; that the “refusal to submit ....
...to OCGA § 24-4-417 (a) (1). Moreover, officers are required to read the warnings in a “substantively accurate” form. Sauls v. State, 293 Ga. 165, 167- 168 (744 SE2d 735) (2013), overruled in part on other grounds, Olevik, 302 Ga. at 246 (2) (c) (iv) n. 11; see OCGA § 40-5-67.1 (b) (“Such notice shall be read in its entirety but need not be read exactly so long as the substance of the notice remains unchanged.”)....
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Adams v. State, 306 Ga. 1 (Ga. 2019).

Published | Supreme Court of Georgia | Jun 3, 2019

...to the extent that he was less safe to drive, failure to maintain lane, and following too closely. He appealed, asserting as error the admission of evidence regarding a stipulation in an administrative license suspension hearing pursuant to OCGA § 40-5-67.1 and evidence of a 2011 arrest for DUI. The Court of Appeals affirmed his convictions in Adams v....
...In July 2016, after a one-vehicle accident, Adams was arrested for DUI and other offenses and declined to take the state-administered blood test. The trooper who arrested Adams then initiated an administrative suspension of Adams’ license pursuant to OCGA § 40-5-67.1....
...At an administrative hearing in the suspension proceeding, the trooper and Adams’ counsel executed a written agreement, which the trooper testified was a “joint motion to withdraw the license suspension.”1 This agreement provided that the trooper would withdraw the sworn report made pursuant to OCGA § 40-5-67.1, in return for Adams’ promise to enter a guilty plea to the underlying DUI charge....
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State v. Herrera-Bustamante, 304 Ga. 259 (Ga. 2018).

Published | Supreme Court of Georgia | Aug 20, 2018

...indicated impairment. At that point, Officer York arrested Herrera-Bustamante for DUI and put him in the back of the patrol car. The officer then read Herrera-Bustamante the statutory implied consent notice for drivers age 21 and older found in OCGA § 40-5-67.1 (b) (2) and asked if he would consent to a breathalyzer test....
...OCGA § 40-6-392 (d) says: “In any criminal trial, the refusal of the defendant to permit a chemical analysis to be made of his blood, breath, urine, or other bodily substance at the time of his arrest shall be admissible in evidence against him.” And the final paragraph of OCGA § 40-5-67.1 (b), which sets forth the implied consent notices to be read to various classes of drivers, says: “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, ....
... allowing Officer York to testify that he refused to take a breathalyzer test, because the admission of such refusal evidence violates Paragraph XVI. For the first time here, but as a natural extension of his core contention, he also argues that OCGA §§ 40-6-392 (d) and 40-5-67.1 (b) are unconstitutional....
...This plain-error review is limited to the trial court’s evidentiary rulings, that is, “ruling[s] which admit[ ] or exclude[ ] evidence,” OCGA § 24-4-103 (a). See Gates, 298 Ga. at 328-329. Thus, the facial challenge to the constitutionality of OCGA §§ 40-6-392 (d) and 40-5-67.1 (b) that Herrera-Bustamante raises for the first time on appeal is beyond its scope. To show plain error, [Herrera-Bustamante] must point to an error that was not affirmatively waived, the error must have been cl...
...at cuts squarely against his claim of inadmissibility of evidence that he refused to take a DUI chemical test — Court of Appeals cases like Wessels v. State, 169 Ga. App. 246, 246-247 (312 SE2d 361) (1983), along with OCGA §§ 40-6-392 (d) and 40-5-67.1 (b), statutes that have been applied in many cases for many years and whose constitutionality cannot be properly questioned in this case, as discussed above. For these reasons, whatever questions Olevik may raise regarding the adm...

Williams v. State (Ga. 2015).

Published | Supreme Court of Georgia | Mar 27, 2015

...give a test.” The officer “read [Williams] the implied consent and that was pretty 6 Miranda v. Arizona, 384 U.S. 436 (86 SCt 1602, 16 LE2d 694) (1966). 7 The applicable implied consent notice for suspects age 21 or over is found in OCGA § 40-5-67.1 (b) (2), and states: “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....