Senate Bill 633
By: Senator Bearden of the 30th
A BILL TO BE ENTITLED
AN ACT
To amend Title 40 of the Official Code of Georgia Annotated, relating to motor vehicles and
traffic, so as to repeal and reenact implied consent provisions; to provide for chemical testing
of saliva to determine the presence of alcohol or another drug for purposes of driving under
the influence violations; to revise informed consent provisions to include chemical testing
of saliva and to require probable cause for chemical testing of persons involved in certain
traffic accidents; to provide for the admissibility of evidence of the refusal of chemical
testing of saliva; to provide for a definition; to provide for related matters; to repeal
conflicting laws; and for other purposes.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF GEORGIA:
SECTION 1.
Title 40 of the Official Code of Georgia Annotated, relating to motor vehicles and traffic, is
amended in Code Section 40-5-55, relating to implied consent to chemical tests, by repealing
subsection (a) in its entirety and enacting a new subsection (a) to read as follows:
<ins>"(a) The State of Georgia considers that any person who drives or is in actual physical
control of any moving vehicle in violation of any provision of Code Section 40-6-391
constitutes a direct and immediate threat to the welfare and safety of the general public.
Therefore, any person who operates a motor vehicle upon the highways or elsewhere
</ins>
<ins>throughout this state shall be deemed to have given consent, subject to Code
Section 40-6-392, to a chemical test or tests of his or her blood, breath, saliva, urine, or
other bodily substances for the purpose of determining the presence of alcohol or any other
drug, if arrested for any offense arising out of acts alleged to have been committed in
violation of Code Section 40-6-391, or if such person is involved in a traffic accident
resulting in serious injuries or fatalities and the requesting law enforcement officer has
probable cause to believe that such person was driving under the influence of alcohol or
other drugs. The test or tests shall be administered as soon as possible at the request of a
law enforcement officer having probable cause to believe that such person was driving
under the influence of alcohol or other drugs. Subject to Code Section 40-6-392, the
requesting law enforcement officer shall designate which of the test or tests shall be
administered."
</ins> SECTION 2.
Said title is further amended by revising subsection (b) Code Section 40-5-67.1, relating to
chemical tests, implied consent notices, rights of motorists, test results, refusal to submit,
suspension or disqualifications, administrative license suspension hearing and review, and
inspection and certification of breath-taking instruments, as follows:
"(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:
'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,
<ins>saliva,</ins> 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, <ins>saliva,</ins> 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 0.02 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 requested state tests, you are
entitled to additional chemical tests of your blood, breath, <ins>saliva,</ins> 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 <ins>(designate which test)?'
</ins> (2) Implied consent notice for suspects age 21 or over:
'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,
<ins>saliva,</ins> 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, <ins>saliva,</ins> 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, <ins>saliva,</ins> 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 <ins>(designate which test)?'
</ins> (3) Implied consent notice for commercial motor vehicle driver suspects:
'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,
<ins>saliva,</ins> 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 blood, <ins>saliva,</ins> or urine 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
commercial 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 requested state
tests, you are entitled to additional chemical tests of your blood, breath, <ins>saliva,</ins> 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
<ins>(designate which test)?'
</ins> 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 of
such person's blood, <ins>saliva,</ins> or urine, 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."
SECTION 3.
Said title is further amended by revising paragraph (2) of Code Section 40-5-142, relating
to definitions relative to commercial drivers' licenses, as follows:
"(2) 'Alcohol concentration' means:
(A) The number of grams of alcohol per 100 milliliters of blood;
(B) The number of grams of alcohol per 210 liters of breath; <del>or
</del> (C) <ins>The number of grams of alcohol per 100 milliliters of saliva; or
(D)</ins> The number of grams of alcohol per 67 milliliters of urine."
SECTION 4.
Said title is further amended by revising subsection (a) of Code Section 40-5-153, relating
to implied consent to chemical test, administration of test, and procedure, as follows:
"(a) Any person who drives a commercial motor vehicle anywhere in the state shall be
deemed to have given consent, subject to the provisions of Code Sections 40-5-55 and
40-6-392, to a test or tests of that person's blood, breath, <ins>saliva,</ins> or urine for the purpose of
determining that person's alcohol concentration or the presence of other drugs."
SECTION 5.
Said title is further amended by revising subsections (a) and (i) of Code Section 40-6-391,
relating to driving under the influence of alcohol, drugs, or other intoxicating substances,
penalties, publication of notice of conviction for persons convicted for second time, and
endangering a child, as follows:
"(a) A person shall not drive or be in actual physical control of any moving vehicle while:
(1) Under the influence of alcohol to the extent that it is less safe for the person to drive;
(2) Under the influence of any drug to the extent that it is less safe for the person to
drive;
(3) Under the intentional influence of any glue, aerosol, or other toxic vapor to the extent
that it is less safe for the person to drive;
(4) Under the combined influence of any two or more of the substances specified in
paragraphs (1) through (3) of this subsection to the extent that it is less safe for the person
to drive;
(5) The person's alcohol concentration is 0.08 grams or more at any time within three
hours after such driving or being in actual physical control from alcohol consumed before
such driving or being in actual physical control ended; or
(6) Subject to the provisions of subsection (b) of this Code section, there is any amount
of marijuana or a controlled substance, as defined in Code Section 16-13-21, present in
the person's blood, <ins>saliva,</ins> or urine, <del>or both,</del> including the metabolites and derivatives of
each or <del>both</del> <ins>all</ins> without regard to whether or not any alcohol is present in the person's
breath or blood."
"(i) A person shall not drive or be in actual physical control of any moving commercial
motor vehicle while there is 0.04 percent or more by weight of alcohol in such person's
blood, breath, <ins>saliva,</ins> or urine. Every person convicted of violating this subsection shall be
guilty of a misdemeanor and, in addition to any disqualification resulting under Article 7
of Chapter 5 of this title, the 'Uniform Commercial Driver's License Act,' shall be fined as
provided in subsection (c) of this Code section."
SECTION 6.
Said title is further amended by revising subsections (a) through (d) of Code
Section 40-6-392, relating to chemical tests for alcohol or drugs, as follows:
"(a) Upon the trial of any civil or criminal action or proceeding arising out of acts alleged
to have been committed by any person in violation of Code Section 40-6-391, evidence of
the amount of alcohol or drug in a person's blood, <del>urine,</del> breath, <ins>saliva, urine,</ins> or other
bodily substance at the alleged time, as determined by a chemical analysis of the person's
blood, <del>urine,</del> breath, <ins>saliva, urine,</ins> or other bodily substance shall be admissible. Where
such a chemical test is made, the following provisions shall apply:
(1)(A) Chemical analysis of the person's blood, <del>urine,</del> breath, <ins>saliva, urine,</ins> or other
bodily substance, to be considered valid under this Code section, shall have been
performed according to methods approved by the Division of Forensic Sciences of the
Georgia Bureau of Investigation on a machine which was operated with all its
electronic and operating components prescribed by its manufacturer properly attached
and in good working order and by an individual possessing a valid permit issued by the
Division of Forensic Sciences for this purpose. The Division of Forensic Sciences of
the Georgia Bureau of Investigation shall approve satisfactory techniques or methods
to ascertain the qualifications and competence of individuals to conduct analyses and
to issue permits, along with requirements for properly operating and maintaining any
testing instruments, and to issue certificates certifying that instruments have met those
requirements, which certificates and permits shall be subject to termination or
revocation at the discretion of the Division of Forensic Sciences.
(B) In all cases where the arrest is made on or after January 1, 1995, and the state
selects breath testing, two sequential breath samples shall be requested for the testing
of alcohol concentration. For either or both of these sequential samples to be
admissible in the state's or plaintiff's case-in-chief, the readings shall not differ from
each other by an alcohol concentration of greater than 0.020 grams and the lower of the
two results shall be determinative for accusation and indictment purposes and
administrative license suspension purposes. No more than two sequential series of a
total of two adequate breath samples each shall be requested by the state; provided,
however, that after an initial test in which the instrument indicates an adequate breath
sample was given for analysis, any subsequent refusal to give additional breath samples
shall not be construed as a refusal for purposes of suspension of a driver's license under
Code Sections 40-5-55 and 40-5-67.1. Notwithstanding the above, a refusal to give an
adequate sample or samples on any subsequent breath, blood, <ins>saliva,</ins> urine, or other
bodily substance test shall not affect the admissibility of the results of any prior
samples. An adequate breath sample shall mean a breath sample sufficient to cause the
breath-testing instrument to produce a printed alcohol concentration analysis.
(2) When a person shall undergo a chemical test at the request of a law enforcement
officer, only a physician, registered nurse, laboratory technician, emergency medical
technician, or other qualified person may withdraw blood for the purpose of determining
the alcoholic content therein, provided that this limitation shall not apply to the taking of
breath, <ins>saliva,</ins> or urine specimens. No physician, registered nurse, or other qualified
person or employer thereof shall incur any civil or criminal liability as a result of the
medically proper obtaining of such blood specimens when requested in writing by a law
enforcement officer;
(3) The person tested may have a physician or a qualified technician, chemist, registered
nurse, or other qualified person of his <ins>or her</ins> own choosing administer a chemical test or
tests in addition to any administered at the direction of a law enforcement officer. The
justifiable failure or inability to obtain an additional test shall not preclude the admission
of evidence relating to the test or tests taken at the direction of a law enforcement officer;
and
(4) Upon the request of the person who shall submit to a chemical test or tests at the
request of a law enforcement officer, full information concerning the test or tests shall be
made available to <del>him or his</del> <ins>such person or his or her</ins> attorney. The arresting officer at
the time of arrest shall advise the person arrested of his <ins>or her</ins> rights to a chemical test or
tests according to this Code section.
(b) Except as provided in subsection (c) of this Code section, upon the trial of any civil or
criminal action or proceeding arising out of acts alleged to have been committed by any
person in violation of Code Section 40-6-391, the amount of alcohol in the person's blood
at the time alleged, as shown by chemical analysis of the person's blood, <del>urine,</del> breath,
<ins>saliva, urine,</ins> or other bodily substance, may give rise to inferences as follows:
(1) If there was at that time an alcohol concentration of 0.05 grams or less, the trier of
fact in its discretion may infer therefrom that the person was not under the influence of
alcohol, as prohibited by paragraphs (1) and (4) of subsection (a) of Code
Section 40-6-391; or
(2) If there was at that time an alcohol concentration in excess of 0.05 grams but less
than 0.08 grams, such fact shall not give rise to any inference that the person was or was
not under the influence of alcohol, as prohibited by paragraphs (1) and (4) of
subsection (a) of Code Section 40-6-391, but such fact may be considered by the trier of
fact with other competent evidence in determining whether the person was under the
influence of alcohol, as prohibited by paragraphs (1) and (4) of subsection (a) of Code
Section 40-6-391.
(c)(1) In any civil or criminal action or proceeding arising out of acts alleged to have
been committed in violation of paragraph (5) of subsection (a) of Code Section 40-6-391,
if there was at that time or within three hours after driving or being in actual physical
control of a moving vehicle from alcohol consumed before such driving or being in actual
physical control ended an alcohol concentration of 0.08 or more grams in the person's
blood, breath, <ins>saliva,</ins> or urine, the person shall be in violation of paragraph (5) of
subsection (a) of Code Section 40-6-391.
(2) In any civil or criminal action or proceeding arising out of acts alleged to have been
committed by any person in violation of subsection (i) of Code Section 40-6-391, if there
was at that time or within three hours after driving or being in actual physical control of
a moving vehicle from alcohol consumed before such driving or being in actual physical
control ended an alcohol concentration of 0.04 grams or more in the person's blood,
breath, <ins>saliva,</ins> or urine, the person shall be in violation of subsection (i) of Code
Section 40-6-391.
(3) In any civil or criminal action or proceeding arising out of acts alleged to have been
committed by any person in violation of subsection (k) of Code Section 40-6-391, if there
was at that time or within three hours after driving or being in actual physical control of
a moving vehicle from alcohol consumed before such driving or being in actual physical
control ended an alcohol concentration of 0.02 grams or more in the person's blood,
breath, <ins>saliva,</ins> or urine, the person shall be in violation of subsection (k) of Code
Section 40-6-391.
(d) In any criminal trial, the refusal of the defendant to permit a chemical analysis to be
made of his <ins>or her</ins> blood, breath, <ins>saliva,</ins> urine, or other bodily substance at the time of his
<ins>or her</ins> arrest shall be admissible in evidence against him <ins>or her."
</ins>
SECTION 7.
All laws and parts of laws in conflict with this Act are repealed.