Georgia DUI Law Statute 40-5-67.1 G

Georgia DUI Law Statute: 
40-5-67.1 G
CODE SECTION  12/03/01
  
  40-5-67.1.
(a) The test or tests required under Code Section 40-5-55 shall be
  administered as soon as possible at the request of a law enforcement
  officer having reasonable grounds to believe that the person has
  been driving or was in actual physical control of a moving motor
  vehicle upon the highways or elsewhere throughout this state in
  violation of Code Section 40-6-391 and the officer has arrested such
  person for a violation of Code Section 40-6-391, any federal law in
  conformity with Code Section 40-6-391, or any local ordinance which
  adopts Code Section 40-6-391 by reference or the person has been
  involved in a traffic accident resulting in serious injuries or
  fatalities.  Subject to Code Section 40-6-392, the requesting law
  enforcement officer shall designate which test or tests shall be
  administered initially and may subsequently require a test or tests
  of any substances not initially tested.
  
  (b) At the time a chemical test or tests are requested, the
  arresting officer shall select and read to the person the
  appropriate implied consent notice from the following:
  
    (1) Implied consent notice for suspects under age 21:
  
      “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.  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 the required testing may be
      offered into evidence against you at trial.  If you submit to
      testing and the results indicate an alcohol concentration of
      0.02 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
      required 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 tests) under the implied consent
      law?”
  
    (2) Implied consent notice for suspects age 21 or over:
  
      “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.  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 the required 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
      required 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 tests) under the implied consent
      law?”
  
    (3) Implied consent notice for commercial motor vehicle driver
    suspects:
  
      “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.  If you refuse this testing, you
      will be disqualified from operating a commercial motor vehicle
      for a minimum period of one year.  Your refusal to submit to the
      required testing may be offered into evidence against you at
      trial.  If you submit to testing and the results indicate the
      presence of any alcohol, you will be issued an out-of-service
      order and will be prohibited from operating a motor vehicle for
      24 hours.  If the results indicate an alcohol concentration of
      0.04 grams or more, you will be disqualified from operating a
      commercial motor vehicle for a minimum period of one year.
      After first submitting to the required 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
      tests) under the implied consent law?”
  
  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, such person shall be deemed to have been properly advised
  of his or her rights under this Code section and under Code Section
  40-6-392 and the results of any chemical test, or the refusal to
  submit to a test, shall be admitted into evidence against such
  person.  Such notice shall be read in its entirety but need not be
  read exactly so long as the substance of the notice remains
  unchanged.
  
  (c) If a person under arrest or a person who was involved in any
  traffic accident resulting in serious injuries or fatalities submits
  to a chemical test upon the request of a law enforcement officer and
  the test results indicate that a suspension or disqualification is
  required under this Code section, the results shall be reported to
  the department.  Upon the receipt of a sworn report of the law
  enforcement officer that the officer had reasonable grounds to
  believe the arrested person had been driving or was in actual
  physical control of a moving motor vehicle upon the highways or
  elsewhere throughout this state in violation of Code Section
  40-6-391 or that such person had been driving or was in actual
  physical control of a moving motor vehicle upon the highways or
  elsewhere throughout this state and was involved in a traffic
  accident involving serious injuries or fatalities and that the
  person submitted to a chemical test at the request of the law
  enforcement officer and the test results indicate either an alcohol
  concentration of 0.08 grams or more or, for a person under the age
  of 21, an alcohol concentration of 0.02 grams or more, the
  department shall suspend the person’s driver’s license, permit, or
  nonresident operating privilege pursuant to Code Section 40-5-67.2,
  subject to review as provided for in this chapter.  Upon the receipt
  of a sworn report of the law enforcement officer that the arrested
  person had been operating or was in actual physical control of a
  moving commercial motor vehicle and the test results indicate an
  alcohol concentration of 0.04 grams or more, the department shall
  disqualify the person from operating a motor vehicle for a minimum
  period of one year.
  
  (d) If a person under arrest or a person who was involved in any
  traffic accident resulting in serious injuries or fatalities
  refuses, upon the request of a law enforcement officer, to submit to
  a chemical test designated by the law enforcement officer as
  provided in subsection (a) of this Code section, no test shall be
  given; but the law enforcement officer shall report the refusal to
  the department.  Upon the receipt of a sworn report of the law
  enforcement officer that the officer had reasonable grounds to
  believe the arrested person had been driving or was in actual
  physical control of a moving motor vehicle upon the highways or
  elsewhere throughout this state in violation of Code Section
  40-6-391 or that such person had been driving or was in actual
  physical control of a moving motor vehicle upon the highways or
  elsewhere throughout this state and was involved in a traffic
  accident which resulted in serious injuries or fatalities and that
  the person had refused to submit to the test upon the request of the
  law enforcement officer, the department shall suspend the person’s
  driver’s license, permit, or nonresident operating privilege for a
  period of one year or if the person was operating or in actual
  physical control of a commercial motor vehicle, the department shall
  disqualify the person from operating a commercial motor vehicle and
  shall suspend the person’s driver’s license, permit, or nonresident
  operating privilege, subject to review as provided for in this
  chapter.
  
  (e) If the person is a resident without a driver’s license,
  commercial driver’s license, or permit to operate a motor vehicle in
  this state, the department shall deny issuance of a license or
  permit to such person for the same period provided in subsection (c)
  or (d) of this Code section, whichever is applicable, for suspension
  of a license or permit or disqualification to operate a commercial
  motor vehicle subject to review as provided for in this chapter.
  
    (f)(1) The law enforcement officer, acting on behalf of the
    department, shall personally serve the notice of intention to
    suspend or disqualify the license of the arrested person or other
    person refusing such test on such person at the time of the
    person’s refusal to submit to a test or at the time at which such
    a test indicates that suspension or disqualification is required
    under this Code section.  The law enforcement officer shall take
    possession of any driver’s license or permit held by any person
    whose license is subject to suspension pursuant to subsection (c)
    or (d) of this Code section, if any, and shall issue a 30 day
    temporary permit.  The officer shall forward the person’s driver’s
    license to the department along with the notice of intent to
    suspend or disqualify and the sworn report required by subsection
    (c) or (d) of this Code section within ten calendar days after the
    date of the arrest of such person.  This paragraph shall not apply
    to any person issued a 180 day temporary permit pursuant to
    subsection (b) of Code Section 40-5-67.  The failure of the
    officer to transmit the sworn report required by this Code section
    within ten calendar days shall not prevent the department from
    accepting such report and utilizing it in the suspension of a
    driver’s license as provided in this Code section.
  
    (2) If notice has not been given by the arresting officer, the
    department, upon receipt of the sworn report of such officer,
    shall suspend the person’s driver’s license, permit, or
    nonresident operating privilege or disqualify such person from
    operating a motor vehicle and, by regular mail, at the last known
    address, notify such person of such suspension or
    disqualification.  The notice shall inform the person of the
    grounds of suspension or disqualification, the effective date of
    the suspension or disqualification, and the right to review. The
    notice shall be deemed received three days after mailing.
  
    (g)(1) A person whose driver’s license is suspended or who is
    disqualified from operating a commercial motor vehicle pursuant to
    this Code section shall request, in writing, a hearing within ten
    business days from the date of personal notice or receipt of
    notice sent by certified mail or statutory overnight delivery,
    return receipt requested, or the right to said hearing shall be
    deemed waived.  Within 30 days after receiving a written request
    for a hearing, the department shall hold a hearing as is provided
    in Chapter 13 of Title 50, the “Georgia Administrative Procedure
    Act.”  The hearing shall be recorded.
  
    (2) The scope of the hearing shall be limited to the following
    issues:
  
      (A) Whether the law enforcement officer had reasonable grounds
      to believe the person was driving or in actual physical control
      of a moving motor vehicle while under the influence of alcohol
      or a controlled substance and was lawfully placed under arrest
      for violating Code Section 40-6-391; or
  
      (B) Whether the person was involved in a motor vehicle accident
      or collision resulting in serious injury or fatality; and
  
      (C) Whether at the time of the request for the test or tests the
      officer informed the person of the person’s implied consent
      rights and the consequence of submitting or refusing to submit
      to such test; and
  
      (D) Whether the person refused the test; or
  
      (E) Whether a test or tests were administered and the results
      indicated an alcohol concentration of 0.08 grams or more or, for
      a person under the age of 21, an alcohol concentration of 0.02
      grams or more or, for a person operating or having actual
      physical control of a commercial motor vehicle, an alcohol
      concentration of 0.04 grams or more; and
  
      (F) Whether the test or tests were properly administered by an
      individual possessing a valid permit issued by the Division of
      Forensic Sciences of the Georgia Bureau of Investigation on an
      instrument approved by the Division of Forensic Sciences or a
      test conducted by the Division of Forensic Sciences, including
      whether the machine at the time of the test was operated with
      all its electronic and operating components prescribed by its
      manufacturer properly attached and in good working order, which
      shall be required.  A copy of the operator’s permit showing that
      the operator has been trained on the particular type of
      instrument used and one of the original copies of the test
      results or, where the test is performed by the Division of
      Forensic Sciences, a copy of the crime lab report shall satisfy
      the requirements of this subparagraph.
  
    (3) The hearing officer shall, within five calendar days after
    such hearing, forward a decision to the department to rescind or
    sustain the driver’s license suspension or disqualification.  If
    no hearing is requested within the ten business days specified
    above, and the failure to request such hearing is due in whole or
    in part to the reasonably avoidable fault of the person, the right
    to a hearing shall have been waived.  The request for a hearing
    shall not stay the suspension of the driver’s license; provided,
    however, that if the hearing is timely requested and is not held
    before the expiration of the temporary permit and the delay is not
    due in whole or in part to the reasonably avoidable fault of the
    person, the suspension shall be stayed until such time as the
    hearing is held and the hearing officer’s decision is made.
  
    (4) In the event the person is acquitted of a violation of Code
    Section 40-6-391 or such charge is initially disposed of other
    than by a conviction or plea of nolo contendere, then the
    suspension shall be terminated and deleted from the driver’s
    license record.  An accepted plea of nolo contendere shall be
    entered on the driver’s license record and shall be considered and
    counted as a conviction for purposes of any future violations of
    Code Section 40-6-391.  In the event of an acquittal or other
    disposition other than by a conviction or plea of nolo contendere,
    the driver’s license restoration fee shall be promptly returned by
    the department to the licensee.
  
  (h) If the suspension is sustained after such a hearing, the person
  whose license has been suspended under this Code section shall have
  a right to file for a judicial review of the department’s final
  decision, as provided for in Chapter 13 of Title 50, the “Georgia
  Administrative Procedure Act”; while such appeal is pending, the
  order of the department shall not be stayed.
  
  (i) Subject to the limitations of this subsection, any law
  enforcement officer who attends a hearing provided for by subsection
  (g) of this Code section for the purpose of giving testimony
  relative to the subject of such hearing shall be compensated in the
  amount of $20.00 for each day’s attendance at such hearing.  In the
  event a law enforcement officer gives testimony at two or more
  different hearings on the same day, such officer shall receive only
  $20.00 for attendance at all hearings.  The compensation provided
  for in this subsection shall not be paid to any law enforcement
  officer who is on regular duty or who is on a lunch or other break
  from regular duty at the time the officer attends any such hearing.
  The compensation provided for by this subsection shall be paid to
  the law enforcement officer by the department from department funds
  at such time and in such manner as the commissioner shall provide by
  rules or regulations.  The commissioner shall also require
  verification of a law enforcement officer’s qualifying to receive
  the payment authorized by this subsection by requiring the
  completion of an appropriate document in substantially the following
  form:
  
              IMPLIED CONSENT HEARING ATTENDANCE RECORD
  
     OFFICER: _____________________  S.S. No. _______________
  
     ADDRESS:                                                        
                   Street     City     State    ZIP Code
  
     DATE: ___________________  TIME: __________________ A.M.
  
                                                        P.M.
     CASE:                                                           
  
    This is to certify that the police officer named above attended an
    implied consent hearing as a witness or complainant on the date
    and time shown above.
  
     HEARING OFFICER: _______________ TITLE: ___________
  
    I certify that I appeared at the implied consent hearing described
    above on the date and time shown above and that I was not on
    regular duty at the time of attending the hearing and that I have
    not received and will not receive compensation from my regular
    employer for attending the hearing.
  
                                 Signature of officer: _______________
  
                         APPROVED FOR PAYMENT: _______________________
                                                           Comptroller
  
  (j) Each time an approved breath-testing instrument is inspected,
  the inspector shall prepare a certificate which shall be signed
  under oath by the inspector and which shall include the following
  language:
  
    “This breath-testing instrument (serial no. __________) was
    thoroughly inspected, tested, and standardized by the undersigned
    on (date ______________) and all of its electronic and operating
    components prescribed by its manufacturer are properly attached
    and are in good working order.”
  
  When properly prepared and executed, as prescribed in this
  subsection, the certificate shall, notwithstanding any other
  provision of law, be self-authenticating, shall be admissible in any
  court of law, and shall satisfy the pertinent requirements of
  paragraph (1) of subsection (a) of Code Section 40-6-392 and
  subparagraph (g)(2)(F) of this Code section.