The Supreme Court in Elliott found that under Georgia constitutional protections, drivers could not be required to refuse a breath test under the implied consent. This created a situation where either a constitutional amendment to remove that protection was required or the long-standing implied consent warning needed to be tweaked to reflect the Georgia driver's right to refuse breath testing.
The General Assembly chose to attempt to fix the implied consent warning to reflect the Supreme Court's findings. This resulted in changes to the hunting, driving and boating implied consent warnings. By way of example, the new "over 21" ICW reads:
The State of Georgia has conditioned your privilege to drive upon the highways of this state upon your submission 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. If you refuse this testing, your Georgia driver's license or privilege to drive on the highways of this state will be suspended for a minimum period of one year. Your refusal to submit to blood or urine testing may be offered into evidence against you at trial. 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. After first submitting to the requested state tests, you are entitled 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)?
The differences are somewhat subtle.
- Language about testing being required has been replaced with softer language that driving is conditioned upon the agreement to submit to testing.
- Language that used to tell the driver that any refusal could be used against the driver at trial is now limited to requested blood and urine testing.
Whether these changes will be sufficient remains to be seen.
2019-2020 HB 471