03 LC 31 0308
House Bill 651
By: Representatives Benfield of the 56th, Post 1, Mangham of the 62nd, Hill of the 81st and Bridges of the 7th
By: Representatives Benfield of the 56th, Post 1, Mangham of the 62nd, Hill of the 81st and Bridges of the 7th
A BILL TO BE ENTITLED
AN ACT
AN ACT
To amend Title 40 of the Official Code of Georgia Annotated, relating to motor vehicles and traffic, so as to create the new offense of refusal to submit to chemical testing; to change certain provisions relating to chemical tests, implied consent notices, rights of motorists, test results, refusal to submit, suspension or denial, hearing and review, compensation of officers, and inspection and certification of breath_testing instruments; to change certain provisions 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; to change certain provisions relating to chemical tests for alcohol or drugs in blood; 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 by striking subsection (b) of Code Section 40_5_67.1, relating to chemical tests, implied consent notices, rights of motorists, test results, refusal to submit, suspension or denial, hearing and review, compensation of officers, and inspection and certification of breath_testing instruments, and inserting in lieu thereof the following:
"(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, and you may be charged with the separate offense of refusal to submit to chemical testing. 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, and you may be charged with the separate offense of refusal to submit to chemical testing. 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, and you may be charged with the separate offense of refusal to submit to chemical testing. 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?'
Ifany such this notice is used by a law enforcement officer to advise a person of his or her rights regarding the administration of chemical testing, such the 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 the person. Such This notice shall be read in its entirety but need not be read exactly so long as the substance of the notice remains unchanged."
"(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, and you may be charged with the separate offense of refusal to submit to chemical testing. 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, and you may be charged with the separate offense of refusal to submit to chemical testing. 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, and you may be charged with the separate offense of refusal to submit to chemical testing. 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
SECTION 2.
Said title is further amended in 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, by striking subsections (a), (b), and (e), and inserting in their respective places the following, and by adding a new subsection (m) 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 or urine, or both, including the metabolites and derivatives of each or both without regard to whether or not any alcohol is present in the person´s breath or blood.
(b) The fact that any person charged with violating this Code section is or has been legally entitled to use a drug shall not constitute a defense against any charge of violating this Code section; provided, however, that such person shall not be in violation of this Code section unless such person is rendered incapable of driving safely as a result of using a drug other than alcohol which such person is legally entitled to use.
(6) There is any amount of any Schedule I controlled substance listed in paragraphs (3) through (6) of Code Section 16_13_25, marijuana, cocaine, or any metabolite or derivative of any of them present in the person´s blood, urine, or both, without regard to whether or not any alcohol is present in the person´s breath or blood.
(b) Reserved."
"(e) Theforegoing limitations on punishment imposed by subsection (c) of this Code section also shall apply when a defendant has been convicted of violating, by a single transaction, more than one of the four provisions of subsection (a) of this Code section."
"(m)(1) Any person who refuses to submit to lawfully requested chemical testing to which the person is deemed by Code Section 40_5_55 to have given consent shall be guilty of the separate offense of refusal to submit to chemical testing and upon conviction thereof shall be punished as provided by subsection (c) of this Code section.
(2) The disposition of any administrative proceeding pursuant to Code Section 40_5_67.1 arising from the same course of conduct which forms the basis of a prosecution pursuant to this subsection shall not affect the prosecution of a person for violation of this subsection.
(3) Any person who is requested to submit to chemical testing pursuant to Code Section 40_5_55 shall be advised by a law enforcement officer that refusal to submit to chemical testing is a separate crime for which the person may be charged."
"(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) There is any amount of any Schedule I controlled substance listed in paragraphs (3) through (6) of Code Section 16_13_25, marijuana, cocaine, or any metabolite or derivative of any of them present in the person´s blood, urine, or both, without regard to whether or not any alcohol is present in the person´s breath or blood.
(b) Reserved."
"(e) The
"(m)(1) Any person who refuses to submit to lawfully requested chemical testing to which the person is deemed by Code Section 40_5_55 to have given consent shall be guilty of the separate offense of refusal to submit to chemical testing and upon conviction thereof shall be punished as provided by subsection (c) of this Code section.
(2) The disposition of any administrative proceeding pursuant to Code Section 40_5_67.1 arising from the same course of conduct which forms the basis of a prosecution pursuant to this subsection shall not affect the prosecution of a person for violation of this subsection.
(3) Any person who is requested to submit to chemical testing pursuant to Code Section 40_5_55 shall be advised by a law enforcement officer that refusal to submit to chemical testing is a separate crime for which the person may be charged."
SECTION 3.
Said title is further amended in Code Section 40-6-392, relating to chemical tests for alcohol or drugs in blood, by striking subsections (a) and (d), and inserting in their respective places the following:
"(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, urine, breath, or other bodily substance at the alleged time, as determined by a chemical analysis of the person´s blood, urine, breath, 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, urine, breath, 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 or failure to give an adequate sample or samples on any subsequent breath, blood, 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 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 or her 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 tohim or his the person or the person´s attorney. The arresting officer at the time of arrest shall advise the person arrested of his or her rights to a chemical test or tests according to this Code section."
"(d) In any criminal trial, the refusal of the defendant to permit a chemical analysis to be made of his or her blood, breath, urine, or other bodily substance at the time of his or her arrest shall be admissible in evidence against him or her, and the trier of fact may in its discretion infer from the refusal that the person was unlawfully under the influence of alcohol, drugs, or other intoxicating substances or had an unlawful alcohol concentration as prohibited by Code Section 40_6_391."
"(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, urine, breath, or other bodily substance at the alleged time, as determined by a chemical analysis of the person´s blood, urine, breath, 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, urine, breath, 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 or failure to give an adequate sample or samples on any subsequent breath, blood, 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 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 or her 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
"(d) In any criminal trial, the refusal of the defendant to permit a chemical analysis to be made of his or her blood, breath, urine, or other bodily substance at the time of his or her arrest shall be admissible in evidence against him or her, and the trier of fact may in its discretion infer from the refusal that the person was unlawfully under the influence of alcohol, drugs, or other intoxicating substances or had an unlawful alcohol concentration as prohibited by Code Section 40_6_391."
SECTION 4.
All laws and parts of laws in conflict with this Act are repealed.
