SB 66 - DUI - provisions on offense, im- plied consent to chemical tests
Georgia Senate - 1995/1996 Sessions
SB 66 - DUI - provisions on offense, im- plied consent to chemical tests
Page Numbers - 1/ 2/ 3/ 4/ 5/ 6/ 7/ 8
1. Clay 37th 2. Crotts 17th 3. McGuire 30th
Senate Comm: Judy / House Comm: SJudy /
Senate Vote: Yeas 46 Nays 1
---------------------------------------------
Senate Action House
---------------------------------------------
1/12/95 Read 1st time 2/1/95
1/27/95 Favorably Reported
1/30/95 Read 2nd Time 2/2/95
1/31/95 Read 3rd Time
1/31/95 Passed/Adopted
---------------------------------------------
Code Sections amended: 40-5-67.1, 40-6-391, 40-6-392
SB 66 95 LC 9 7934
SENATE BILL 66
By: Senators Clay of the 37th, Crotts of the 17th,
McGuire of the 30th and others
A BILL TO BE ENTITLED
AN ACT
1- 1 To amend Title 40 of the Official Code of Georgia Annotated,
1- 2 relating to motor vehicles and traffic, so as to change the
1- 3 provisions relating to the offense of driving under the
1- 4 influence of alcohol or drugs; to change the provisions
1- 5 relating to implied consent to chemical tests; to change the
1- 6 provisions relating to administration of chemical tests,
1- 7 rights of motorists, reporting of test results, refusal to
1- 8 submit to tests, and suspension or denial of licenses and
1- 9 permits; to change the provisions relating to hearings and
1-10 the scope thereof; to change or repeal certain presumptions;
1-11 to change the alcohol concentration, and provisions related
1-12 thereto, relating to the offense of driving under the
1-13 influence of alcohol or drugs; to provide for other matters
1-14 relative thereto; to repeal conflicting laws; and for other
1-15 purposes.
1-16 BE IT ENACTED BY THE GENERAL ASSEMBLY OF GEORGIA:
SECTION 1.
1-17 Title 40 of the Official Code of Georgia Annotated, relating
1-18 to motor vehicles and traffic, is amended by striking
1-19 subsection (a) of Code Section 40-5-55, relating to implied
1-20 consent to chemical tests, and inserting in lieu thereof a
1-21 new subsection (a) to read as follows:
1-22 "(a) The State of Georgia considers that the persons who
1-23 are under the influence of alcohol or drugs while
1-24 operating a motor vehicle or who have a blood alcohol
1-25 concentration of 0.10 0.08 grams or more at any time
1-26 within three hours after operating a motor vehicle from
1-27 alcohol consumed before such driving or actual physical
1-28 control ended or who have any amount of marijuana or any
1-29 controlled substance without prescription present in their
1-30 blood or urine, without regard to the presence of alcohol,
1-31 while operating a motor vehicle constitute a direct and
1-32 immediate threat to the welfare and safety of the general
1-33 public. Therefore, any person who operates a motor
1-34 vehicle upon the highways or elsewhere throughout this
S. B. 66
-1- (Index)
LC 9 7934
2- 1 state shall be deemed to have given consent, subject to
2- 2 Code Section 40-6-392, to a chemical test or tests of his
2- 3 or her blood, breath, urine, or other bodily substances
2- 4 for the purpose of determining the presence of alcohol or
2- 5 any other drug, if arrested for any offense arising out of
2- 6 acts alleged to have been committed in violation of Code
2- 7 Section 40-6-391 or if such person is involved in any
2- 8 traffic accident resulting in serious injuries or
2- 9 fatalities. The test or tests shall be administered at
2-10 the request of a law enforcement officer having reasonable
2-11 grounds to believe that the person has been driving or was
2-12 in actual physical control of a moving motor vehicle upon
2-13 the highways or elsewhere throughout this state in
2-14 violation of Code Section 40-6-391. The test or tests
2-15 shall be administered as soon as possible to any person
2-16 who operates a motor vehicle upon the highways or
2-17 elsewhere throughout this state who is involved in any
2-18 traffic accident resulting in serious injuries or
2-19 fatalities. Subject to Code Section 40-6-392, the
2-20 requesting law enforcement officer shall designate which
2-21 of the test or tests shall be administered, provided a
2-22 blood test with drug screen may be administered to any
2-23 person operating a motor vehicle involved in a traffic
2-24 accident resulting in serious injuries or fatalities."
SECTION 2.
2-25 Said title is further amended by striking subsections (b),
2-26 (c), and (g) of Code Section 40-5-67.1, relating to
2-27 administration of chemical tests, rights of motorists,
2-28 reporting of test results, refusal to submit to tests,
2-29 suspension or denial of licenses or permits, hearings and
2-30 review, and compensation of officers attending hearings, and
2-31 inserting in lieu thereof new subsections (b), (c), and (g)
2-32 to read as follows:
2-33 "(b) At the time a chemical test or tests are requested,
2-34 the person shall be informed by the arresting officer
2-35 that:
2-36 (1) Georgia law requires the person to submit to a test
2-37 to determine if the person is under the influence of
2-38 alcohol or other drugs;
2-39 (2) If the testing is refused, the person's driver's
2-40 license or right to drive will be suspended for a period
2-41 of one year or, if the person is under age 18, for a
2-42 period of one year or until the age of 18, whichever is
S. B. 66
-2- (Index)
LC 9 7934
3- 1 greater, or, if the vehicle is a commercial vehicle, the
3- 2 person will be disqualified from operating a commercial
3- 3 motor vehicle for a minimum period of one year;
3- 4 (3) If a test is performed and the results indicate a
3- 5 blood alcohol concentration of 0.10 0.08 grams or more,
3- 6 the driver's license or right to drive may be suspended
3- 7 for a minimum period of one year or, for a person under
3- 8 the age of 18, a blood alcohol concentration of 0.04
3- 9 grams or more, the person's driver's license or right to
3-10 drive will be suspended for a minimum period of one year
3-11 or until the age of 18, whichever is greater, and if the
3-12 vehicle was a commercial motor vehicle and the test
3-13 results indicate the presence of any alcohol, the person
3-14 will be issued an out-of-service order and will be
3-15 prohibited from operating a motor vehicle for 24 hours,
3-16 and if the results indicate a blood alcohol
3-17 concentration of 0.04 grams or more, the person will be
3-18 disqualified from operating a commercial motor vehicle
3-19 for a minimum period of one year;
3-20 (4) After submitting to the required testing, the person
3-21 shall be entitled to obtain an additional test or tests
3-22 at the expense of such person; and
3-23 (5) The refusal to submit to a test may be offered into
3-24 evidence against the person at trial.
3-25 Failure to provide any notice required under this
3-26 subsection shall not invalidate the suspension pursuant to
3-27 this Code section of any driver's license.
3-28 (c) If a person under arrest or a person who was involved
3-29 in any traffic accident resulting in serious injuries or
3-30 fatalities submits to a chemical test upon the request of
3-31 a law enforcement officer and the test results indicate
3-32 that a suspension or disqualification is required under
3-33 this Code section, the results shall be reported to the
3-34 department. Upon the receipt of a sworn report of the law
3-35 enforcement officer that the officer had reasonable
3-36 grounds to believe the arrested person had been driving or
3-37 was in actual physical control of a moving motor vehicle
3-38 upon the highway or elsewhere throughout this state in
3-39 violation of Code Section 40-6-391 or that such person had
3-40 been driving or was in actual physical control of a moving
3-41 motor vehicle upon the highways or elsewhere throughout
3-42 this state and was involved in a traffic accident
3-43 involving serious injuries or fatalities and that the
S. B. 66
-3- (Index)
LC 9 7934
4- 1 person submitted to a chemical test at the request of the
4- 2 law enforcement officer and the test results indicate
4- 3 either a blood alcohol concentration of 0.10 0.08 grams or
4- 4 more or, for a person under the age of 18, a blood alcohol
4- 5 concentration of 0.04 grams or more, the department shall
4- 6 suspend the person's driver's license, permit, or
4- 7 nonresident operating privilege pursuant to Code Section
4- 8 40-5-67.2, subject to review as provided for in this
4- 9 chapter. Upon the receipt of a sworn report of the law
4-10 enforcement officer that the arrested person had been
4-11 operating or was in actual physical control of a moving
4-12 commercial motor vehicle and the test results indicate a
4-13 blood alcohol concentration of 0.04 grams or more, the
4-14 department shall disqualify the person from operating a
4-15 motor vehicle for a minimum period of one year."
4-16 "(g)(1) A person whose driver's license is suspended or
4-17 who is disqualified from operating a commercial motor
4-18 vehicle pursuant to this Code section shall request, in
4-19 writing, a hearing within ten business days from the
4-20 date of personal notice or receipt of notice sent by
4-21 certified mail, return receipt requested, or the right
4-22 to said hearing shall be deemed waived. Within 30 days
4-23 after receiving a written request for a hearing, the
4-24 department shall hold a hearing as is provided in
4-25 Chapter 13 of Title 50, the 'Georgia Administrative
4-26 Procedure Act.' The hearing shall be recorded.
4-27 (2) The scope of the hearing shall be limited to the
4-28 following issues:
4-29 (A) Whether the law enforcement officer had reasonable
4-30 grounds to believe the person was driving or in actual
4-31 physical control of a moving motor vehicle while under
4-32 the influence of alcohol or a controlled substance and
4-33 was lawfully placed under arrest for violating Code
4-34 Section 40-6-391; or
4-35 (B) Whether the person was involved in a motor vehicle
4-36 accident or collision resulting in serious injury or
4-37 fatality; and
4-38 (C) Whether at the time of the request for the test or
4-39 tests the officer informed the person of the person's
4-40 implied consent rights and the consequence of
4-41 submitting or refusing to submit to such test; and
4-42 (D) Whether the person refused the test; or
S. B. 66
-4- (Index)
LC 9 7934
5- 1 (E) Whether a test or tests was administered and the
5- 2 results indicated a blood alcohol concentration of
5- 3 0.10 0.08 grams or more or, for a person under the age
5- 4 of 18, a blood alcohol concentration of 0.04 grams or
5- 5 more or, for a person operating or having actual
5- 6 physical control of a commercial motor vehicle, a
5- 7 blood alcohol concentration of 0.04 grams or more; and
5- 8 (F) Whether the test or tests were properly
5- 9 administered by an individual possessing a valid
5-10 permit issued by the Division of Forensic Sciences of
5-11 the Georgia Bureau of Investigation on a machine
5-12 approved by the Division of Forensic Sciences or a
5-13 test conducted by the Division of Forensic Sciences,
5-14 including whether the machine at the time of the test
5-15 was operated with all its electronic and operating
5-16 components prescribed by its manufacturer properly
5-17 attached and in good working order, which shall be
5-18 required. A copy of the operator's permit showing that
5-19 the operator has been trained on the particular type
5-20 of machine used and one of the original copies of the
5-21 test results or, where the test is performed by the
5-22 Division of Forensic Sciences, a copy of the crime lab
5-23 report shall satisfy the requirements of this
5-24 subparagraph.
5-25 (3) The hearing officer shall, within five calendar days
5-26 after such hearing, forward a decision to the department
5-27 to rescind or sustain the driver's license suspension or
5-28 disqualification. If no hearing is requested within the
5-29 ten business days specified above, and the failure to
5-30 request such hearing is due in whole or in part to the
5-31 reasonably avoidable fault of the person, the right to a
5-32 hearing shall have been waived. The request for a
5-33 hearing shall not stay the suspension of the driver's
5-34 license; provided, however, that if the hearing is
5-35 timely requested and is not held before the expiration
5-36 of the temporary permit and the delay is not due in
5-37 whole or in part to the reasonably avoidable fault of
5-38 the person, the suspension shall be stayed until such
5-39 time as the hearing is held and the hearing officer's
5-40 decision is made.
5-41 (4) In the event the person is acquitted of a violation
5-42 of Code Section 40-6-391 or such charge is initially
5-43 disposed of other than by a conviction, then the
5-44 suspension shall be terminated and deleted from the
S. B. 66
-5- (Index)
LC 9 7934
6- 1 driver's license record. In the event that a plea of
6- 2 nolo contendere is accepted to a charge of violating
6- 3 Code Section 40-6-391, then the suspension shall be
6- 4 terminated, provided that the accepted plea of nolo
6- 5 contendere shall be entered on the driver's license
6- 6 record and shall be considered and counted as a
6- 7 conviction for purposes of any future violations of Code
6- 8 Section 40-6-391. In the event of an acquittal, accepted
6- 9 plea of nolo contendere, or other disposition other than
6-10 by a conviction, the driver's license restoration fee
6-11 shall be promptly returned by the Department of Public
6-12 Safety to the licensee."
SECTION 3.
6-13 Said title is further amended by striking subsection (a) of
6-14 Code Section 40-6-391, relating to driving under the
6-15 influence of alcohol or drugs, penalties related thereto,
6-16 publication of notices of convictions, and endangering a
6-17 child, and inserting in lieu thereof a new subsection (a) to
6-18 read as follows:
6-19 "(a) A person shall not drive or be in actual physical
6-20 control of any moving vehicle while:
6-21 (1) Under the influence of alcohol to the extent that it
6-22 is less safe for the person to drive;
6-23 (2) Under the influence of any drug to the extent that
6-24 it is less safe for the person to drive;
6-25 (3) Under the combined influence of alcohol and any drug
6-26 to the extent that it is less safe for the person to
6-27 drive;
6-28 (4) The person's alcohol concentration is 0.10 0.08
6-29 grams or more at any time within three hours after such
6-30 driving or being in actual physical control from alcohol
6-31 consumed before such driving or being in actual physical
6-32 control ended; or
6-33 (5) Subject to the provisions of subsection (b) of this
6-34 Code section, there is any amount of marijuana or a
6-35 controlled substance, as defined in Code Section
6-36 16-13-21, present in the person's blood or urine, or
6-37 both, including the metabolites and derivatives of each
6-38 or both without regard to whether or not any alcohol is
6-39 present in the person's breath or blood."
S. B. 66
-6- (Index)
LC 9 7934
SECTION 4.
7- 1 Said title is further amended by striking subsection (b) of
7- 2 Code Section 40-6-392, relating to chemical tests for
7- 3 alcohol or drugs in blood, urine, breath, or other bodily
7- 4 substances, and inserting in lieu thereof a new subsection
7- 5 (b) to read as follows:
7- 6 "(b) Except as provided in subsection (c) of this Code
7- 7 section, upon the trial of any civil or criminal action or
7- 8 proceeding arising out of acts alleged to have been
7- 9 committed by any person in violation of Code Section
7-10 40-6-391, the amount of alcohol in the person's blood at
7-11 the time alleged, as shown by chemical analysis of the
7-12 person's blood, urine, breath, or other bodily substance,
7-13 shall give rise to the following presumptions:
d d d zÿ €P@ d áÿ €P@ d H ÿ €P@ d ¯ ÿ €P@ d
ÿ €P@ d }
ÿ €P@ d ä
ÿ
7-15 of 0.05 grams or less, it shall be presumed that the
7-16 person was not under the influence of alcohol, as
7-17 prohibited by paragraphs (1), (2), and (3) of subsection
7-18 (a) of Code Section 40-6-391;
7-19 (2) If there was at that time an alcohol concentration
7-20 in excess of 0.05 grams but less than 0.08 grams, such
7-21 fact shall not give rise to any presumption that the
7-22 person was or was not under the influence of alcohol, as
7-23 prohibited by paragraphs (1), (2), and (3) of subsection
7-24 (a) of Code Section 40-6-391, but such fact may be
7-25 considered with other competent evidence in determining
7-26 whether the person was under the influence of alcohol,
7-27 as prohibited by paragraphs (1), (2), and (3) of
7-28 subsection (a) of Code Section 40-6-391; and (3) If there was at that time an alcohol concentration
7-30 of 0.08 grams or more, it shall be presumed that the
7-31 person was under the influence of alcohol, as prohibited
7-32 by paragraphs (1), (2), and (3) of subsection (a) of
7-33 Code Section 40-6-391; and
7-34 (3)(4) If there was at that time or within three hours
7-35 after driving or being in actual physical control of a
7-36 moving vehicle from alcohol consumed before such driving
7-37 or being in actual physical control ended an alcohol
7-38 concentration of 0.10 0.08 or more grams, the person
7-39 shall be in violation of paragraph (4) of subsection (a)
7-40 of Code Section 40-6-391."
S. B. 66
-7- (Index)
LC 9 7934
SECTION 5.
8- 1 All laws and parts of laws in conflict with this Act are
8- 2 repealed.
S. B. 66
-8- (Index)
Office of the Secretary of the Senate
Frank Eldridge, Jr., Secretary of the Senate
Last Updated on 01/02/97