SB633: SB633 Motor Vehicles and Traffic; implied consent provisions; repeal and reenact

26 LC 63 0056 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 and1 traffic, so as to repeal and reenact implied consent provisions; to provide for chemical testing2 of saliva to determine the presence of alcohol or another drug for purposes of driving under3 the influence violations; to revise informed consent provisions to include chemical testing4 of saliva and to require probable cause for chemical testing of persons involved in certain5 traffic accidents; to provide for the admissibility of evidence of the refusal of chemical6 testing of saliva; to provide for a definition; to provide for related matters; to repeal7 conflicting laws; and for other purposes.8 BE IT ENACTED BY THE GENERAL ASSEMBLY OF GEORGIA:9 SECTION 1.10 Title 40 of the Official Code of Georgia Annotated, relating to motor vehicles and traffic, is11 amended in Code Section 40-5-55, relating to implied consent to chemical tests, by repealing12 subsection (a) in its entirety and enacting a new subsection (a) to read as follows:13 "(a) The State of Georgia considers that any person who drives or is in actual physical14 control of any moving vehicle in violation of any provision of Code Section 40-6-39115 constitutes a direct and immediate threat to the welfare and sa fety of the general public. 16 Therefore, any person who operates a motor vehicle upon the hig hways or elsewhere17 S. B. 633 - 1 - 26 LC 63 0056 throughout this state shall be deemed to have given consent, su bject to Code18 Section 40-6-392, to a chemical test or tests of his or her blo od, breath, saliva, urine, or19 other bodily substances for the purpose of determining the presence of alcohol or any other20 drug, if arrested for any offense arising out of acts alleged t o have been committed in21 violation of Code Section 40-6-391, or if such person is involv ed in a traffic accident22 resulting in serious injuries or fatalities and the requesting law enforcement officer has23 probable cause to believe that such person was driving under th e influence of alcohol or24 other drugs. The test or tests shall be administered as soon as possible at the request of a25 law enforcement officer having probable cause to believe that s uch person was driving26 under the influence of alcohol or other drugs. Subject to Code Section 40-6-392, the27 requesting law enforcement officer shall designate which of the test or tests shall be28 administered."29 SECTION 2.30 Said title is further amended by revising subsection (b) Code Section 40-5-67.1, relating to31 chemical tests, implied consent notices, rights of motorists, t est results, refusal to submit,32 suspension or disqualifications, administrative license suspension hearing and review, and33 inspection and certification of breath-taking instruments, as follows:34 "(b) At the time a chemical test or tests are requested, the arresting officer shall select and35 read to the person the appropriate implied consent notice from the following:36 (1) Implied consent notice for suspects under age 21:37 'The State of Georgia has conditioned your privilege to drive upon the highways of this38 state upon your submission to state administered chemical tests of your blood, breath,39 saliva, urine, or other bodily substances for the purpose of determining if you are under40 the influence of alcohol or drugs. If you refuse this testing, your Georgia driver's41 license or privilege to drive on the highways of this state wil l be suspended for a42 minimum period of one year. Your refusal to submit to blood, saliva, or urine testing43 S. B. 633 - 2 - 26 LC 63 0056 may be offered into evidence against you at trial. If you subm it to testing and the44 results indicate an alcohol concentration of 0.02 grams or more, your Georgia driver's45 license or privilege to drive on the highways of this state may be suspended for a46 minimum period of one year. After first submitting to the requested state tests, you are47 entitled to additional chemical tests of your blood, breath, saliva, urine, or other bodily48 substances at your own expense and from qualified personnel of your own choosing. 49 Will you submit to the state administered chemical tests of your (designate which test)?'50 (2) Implied consent notice for suspects age 21 or over:51 'The State of Georgia has conditioned your privilege to drive upon the highways of this52 state upon your submission to state administered chemical tests of your blood, breath,53 saliva, urine, or other bodily substances for the purpose of determining if you are under54 the influence of alcohol or drugs. If you refuse this testing, your Georgia driver's55 license or privilege to drive on the highways of this state wil l be suspended for a56 minimum period of one year. Your refusal to submit to blood, saliva, or urine testing57 may be offered into evidence against you at trial. If you subm it to testing and the58 results indicate an alcohol concentration of 0.08 grams or more, your Georgia driver's59 license or privilege to drive on the highways of this state may be suspended for a60 minimum period of one year. After first submitting to the requested state tests, you are61 entitled to additional chemical tests of your blood, breath, saliva, urine, or other bodily62 substances at your own expense and from qualified personnel of your own choosing. 63 Will you submit to the state administered chemical tests of your (designate which test)?'64 (3) Implied consent notice for commercial motor vehicle driver suspects:65 'The State of Georgia has conditioned your privilege to drive upon the highways of this66 state upon your submission to state administered chemical tests of your blood, breath,67 saliva, urine, or other bodily substances for the purpose of determining if you are under68 the influence of alcohol or drugs. If you refuse this testing, you will be disqualified69 from operating a commercial motor vehicle for a minimum period of one year. Your70 S. B. 633 - 3 - 26 LC 63 0056 refusal to submit to blood, saliva, or urine testing may be offered into evidence against71 you at trial. If you submit to testing and the results indicate the presence of any alcohol,72 you will be issued an out-of-service order and will be prohibit ed from operating a73 commercial motor vehicle for 24 hours. If the results indicate an alcohol concentration74 of 0.04 grams or more, you will be disqualified from operating a commercial motor75 vehicle for a minimum period of one year. After first submitting to the requested state76 tests, you are entitled to additional chemical tests of your blood, breath, saliva, urine,77 or other bodily substances at your own expense and from qualified personnel of your78 own choosing. Will you submit to the state administered chemic al tests of your79 (designate which test)?'80 If any such notice is used by a law enforcement officer to advi se a person of his or her81 rights regarding the administration of chemical testing, such p erson shall be deemed to82 have been properly advised of his or her rights under this Code section and under Code83 Section 40-6-392 and the results of any chemical test, or the refusal to submit to a test of84 such person's blood, saliva, or urine, shall be admitted into evidence against such person. 85 Such notice shall be read in its entirety but need not be read exactly so long as the86 substance of the notice remains unchanged."87 88 SECTION 3.89 Said title is further amended by revising paragraph (2) of Code Section 40-5-142, relating90 to definitions relative to commercial drivers' licenses, as follows:91 "(2) 'Alcohol concentration' means:92 (A) The number of grams of alcohol per 100 milliliters of blood;93 (B) The number of grams of alcohol per 210 liters of breath; or94 (C) The number of grams of alcohol per 100 milliliters of saliva; or95 (D) The number of grams of alcohol per 67 milliliters of urine."96 S. B. 633 - 4 - 26 LC 63 0056 SECTION 4.97 Said title is further amended by revising subsection (a) of Code Section 40-5-153, relating98 to implied consent to chemical test, administration of test, and procedure, as follows:99 "(a) Any person who drives a commercial motor vehicle anywhere in the state shall be100 deemed to have given consent, subject to the provisions of Code Sections 40-5-55 and101 40-6-392, to a test or tests of that person's blood, breath, saliva, or urine for the purpose of102 determining that person's alcohol concentration or the presence of other drugs."103 SECTION 5.104 Said title is further amended by revising subsections (a) and (i) of Code Section 40-6-391,105 relating to driving under the influence of alcohol, drugs, or o ther intoxicating substances,106 penalties, publication of notice of conviction for persons conv icted for second time, and107 endangering a child, as follows:108 "(a) A person shall not drive or be in actual physical control of any moving vehicle while:109 (1) Under the influence of alcohol to the extent that it is less safe for the person to drive;110 (2) Under the influence of any drug to the extent that it is l ess safe for the person to111 drive;112 (3) Under the intentional influence of any glue, aerosol, or other toxic vapor to the extent113 that it is less safe for the person to drive;114 (4) Under the combined influence of any two or more of the sub stances specified in115 paragraphs (1) through (3) of this subsection to the extent that it is less safe for the person116 to drive;117 (5) The person's alcohol concentration is 0.08 grams or more a t any time within three118 hours after such driving or being in actual physical control from alcohol consumed before119 such driving or being in actual physical control ended; or120 (6) Subject to the provisions of subsection (b) of this Code section, there is any amount121 of marijuana or a controlled substance, as defined in Code Section 16-13-21, present in122 S. B. 633 - 5 - 26 LC 63 0056 the person's blood, saliva, or urine, or both, including the metabolites and derivatives of123 each or both all without regard to whether or not any alcohol is present in the person's124 breath or blood."125 "(i) A person shall not drive or be in actual physical control of any moving commercial126 motor vehicle while there is 0.04 percent or more by weight of alcohol in such person's127 blood, breath, saliva, or urine. Every person convicted of violating this subsection shall be128 guilty of a misdemeanor and, in addition to any disqualification resulting under Article 7129 of Chapter 5 of this title, the 'Uniform Commercial Driver's License Act,' shall be fined as130 provided in subsection (c) of this Code section."131 SECTION 6.132 Said title is further amended by revising subsections (a) throu gh (d) of Code133 Section 40-6-392, relating to chemical tests for alcohol or drugs, as follows:134 "(a) Upon the trial of any civil or criminal action or proceeding arising out of acts alleged135 to have been committed by any person in violation of Code Section 40-6-391, evidence of136 the amount of alcohol or drug in a person's blood, urine, breath, saliva, urine, or other137 bodily substance at the alleged time, as determined by a chemical analysis of the person's138 blood, urine, breath, saliva, urine, or other bodily substance shall be admissible. Where139 such a chemical test is made, the following provisions shall apply:140 (1)(A) Chemical analysis of the person's blood, urine, breath, saliva, urine, or other141 bodily substance, to be considered valid under this Code sectio n, shall have been142 performed according to methods approved by the Division of Forensic Sciences of the143 Georgia Bureau of Investigation on a machine which was operated with all its144 electronic and operating components prescribed by its manufacturer properly attached145 and in good working order and by an individual possessing a valid permit issued by the146 Division of Forensic Sciences for this purpose. The Division of Forensic Sciences of147 the Georgia Bureau of Investigation shall approve satisfactory techniques or methods148 S. B. 633 - 6 - 26 LC 63 0056 to ascertain the qualifications and competence of individuals to conduct analyses and149 to issue permits, along with requirements for properly operating and maintaining any150 testing instruments, and to issue certificates certifying that instruments have met those151 requirements, which certificates and permits shall be subject t o termination or152 revocation at the discretion of the Division of Forensic Sciences.153 (B) In all cases where the arrest is made on or after January 1, 1995, and the state154 selects breath testing, two sequential breath samples shall be requested for the testing155 of alcohol concentration. For either or both of these sequenti al samples to be156 admissible in the state's or plaintiff's case-in-chief, the rea dings shall not differ from157 each other by an alcohol concentration of greater than 0.020 grams and the lower of the158 two results shall be determinative for accusation and indictmen t purposes and159 administrative license suspension purposes. No more than two s equential series of a160 total of two adequate breath samples each shall be requested by the state; provided,161 however, that after an initial test in which the instrument indicates an adequate breath162 sample was given for analysis, any subsequent refusal to give additional breath samples163 shall not be construed as a refusal for purposes of suspension of a driver's license under164 Code Sections 40-5-55 and 40-5-67.1. Notwithstanding the above, a refusal to give an165 adequate sample or samples on any subsequent breath, blood, sal iva, urine, or other166 bodily substance test shall not affect the admissibility of the results of any prior167 samples. An adequate breath sample shall mean a breath sample sufficient to cause the168 breath-testing instrument to produce a printed alcohol concentration analysis.169 (2) When a person shall undergo a chemical test at the request of a law enforcement170 officer, only a physician, registered nurse, laboratory technic ian, emergency medical171 technician, or other qualified person may withdraw blood for the purpose of determining172 the alcoholic content therein, provided that this limitation shall not apply to the taking of173 breath, saliva, or urine specimens. No physician, registered nurse, or other qualified174 person or employer thereof shall incur any civil or criminal li ability as a result of the175 S. B. 633 - 7 - 26 LC 63 0056 medically proper obtaining of such blood specimens when requested in writing by a law176 enforcement officer;177 (3) The person tested may have a physician or a qualified technician, chemist, registered178 nurse, or other qualified person of his or her own choosing administer a chemical test or179 tests in addition to any administered at the direction of a law enforcement officer. The180 justifiable failure or inability to obtain an additional test shall not preclude the admission181 of evidence relating to the test or tests taken at the direction of a law enforcement officer;182 and183 (4) Upon the request of the person who shall submit to a chemi cal test or tests at the184 request of a law enforcement officer, full information concerning the test or tests shall be185 made available to him or his such person or his or her attorney. The arresting officer at186 the time of arrest shall advise the person arrested of his or her rights to a chemical test or187 tests according to this Code section.188 (b) Except as provided in subsection (c) of this Code section, upon the trial of any civil or189 criminal action or proceeding arising out of acts alleged to ha ve been committed by any190 person in violation of Code Section 40-6-391, the amount of alcohol in the person's blood191 at the time alleged, as shown by chemical analysis of the perso n's blood, urine, breath,192 saliva, urine, or other bodily substance, may give rise to inferences as follows:193 (1) If there was at that time an alcohol concentration of 0.05 grams or less, the trier of194 fact in its discretion may infer therefrom that the person was not under the influence of195 alcohol, as prohibited by paragraphs (1) and (4) of subsection (a) of Code196 Section 40-6-391; or197 (2) If there was at that time an alcohol concentration in exce ss of 0.05 grams but less198 than 0.08 grams, such fact shall not give rise to any inference that the person was or was199 not under the influence of alcohol, as prohibited by paragraphs (1) and (4) of200 subsection (a) of Code Section 40-6-391, but such fact may be considered by the trier of201 fact with other competent evidence in determining whether the p erson was under the202 S. B. 633 - 8 - 26 LC 63 0056 influence of alcohol, as prohibited by paragraphs (1) and (4) o f subsection (a) of Code203 Section 40-6-391.204 (c)(1) In any civil or criminal action or proceeding arising o ut of acts alleged to have205 been committed in violation of paragraph (5) of subsection (a) of Code Section 40-6-391,206 if there was at that time or within three hours after driving o r being in actual physical207 control of a moving vehicle from alcohol consumed before such driving or being in actual208 physical control ended an alcohol concentration of 0.08 or more grams in the person's209 blood, breath, saliva, or urine, the person shall be in violation of paragraph (5) of210 subsection (a) of Code Section 40-6-391.211 (2) In any civil or criminal action or proceeding arising out of acts alleged to have been212 committed by any person in violation of subsection (i) of Code Section 40-6-391, if there213 was at that time or within three hours after driving or being in actual physical control of214 a moving vehicle from alcohol consumed before such driving or being in actual physical215 control ended an alcohol concentration of 0.04 grams or more in the person's blood,216 breath, saliva, or urine, the person shall be in violation of subsection (i) o f Code217 Section 40-6-391.218 (3) In any civil or criminal action or proceeding arising out of acts alleged to have been219 committed by any person in violation of subsection (k) of Code Section 40-6-391, if there220 was at that time or within three hours after driving or being in actual physical control of221 a moving vehicle from alcohol consumed before such driving or being in actual physical222 control ended an alcohol concentration of 0.02 grams or more in the person's blood,223 breath, saliva, or urine, the person shall be in violation of subsection (k) o f Code224 Section 40-6-391.225 (d) In any criminal trial, the refusal of the defendant to permit a chemical analysis to be226 made of his or her blood, breath, saliva, urine, or other bodily substance at the time of his227 or her arrest shall be admissible in evidence against him or her."228 S. B. 633 - 9 - 26 LC 63 0056 SECTION 7.229 All laws and parts of laws in conflict with this Act are repealed.230 S. B. 633 - 10 -