Ivie v

State, 151 Ga. App. 496, 260 S.E.2d 543, 1979 Ga. App. LEXIS 2583 (1979); Pryor v. State, 182 Ga. App. 79, 354 S.E.2d 690, 1987 Ga. App. LEXIS 2592 (1987). Implied consent warnings that tracked the language of O.C.G.A. § 40-5-67.1 were not deceptive or misleading on the basis that the officer did not subsequently initiate an administrative license suspension. Morrissette v. State, 229 Ga. App. 420, 494 S.E.2d 8, 1997 Ga. App. LEXIS 1306 (1997), cert. denied, No. S98C0457, 1998 Ga. LEXIS 346 (Ga. Feb. 27, 1998). When an officer initially gave the implied consent warning correctly, the officer was under no duty to give further warnings or instructions, and the officer’s subsequent statement to the defendant, i.e., that if the defendant did not submit to a breath test, the officer would suspend the defendant’s driver’s license was not false or misleading. State v. Kirbabas, 232 Ga. App. 474, 502 S.E.2d 314, 1998 Ga. App. LEXIS 718 (1998), reversed on other grounds, State v. Turnquest, 305 Ga. 758, 827 S.E.2d 865, 2019 Ga. LEXIS 320 (2019). Implied consent notice given before arrest. — Required timing of the implied consent notice for a person who is involved in a traffic incident resulting in 40-5-67.1 serious injuries or a fatality, and who is not arrested at that time for a violation of O.C.G.A. § 40-6-391 is: (a) law enforcement officers must administer chemical tests for alcohol and drugs as soon as possible; and (b) the implied consent notice must be given at the time such test is requested, which may or may not be at the time of actual testing. Joiner v. State, 239 Ga. App. 843, 522 S.E.2d 25, 1999 Ga. App. LEXIS 1075 (1999), overruled in part, Handschuh v. State, 270 Ga. App. 676, 607 S.E.2d 899, 2004 Ga. App. LEXIS 1586 (2004). Arrest not required before reading of implied consent rights when defendant received serious injuries in accident. — Because a defendant was involved in an accident which resulted in serious injuries and the investigating officer had probable cause to believe that the defendant was driving under the influence, the officer was not required to arrest the defendant before the reading of implied consent; however, if a different accident did not involve serious injuries, the suspect needed to be under arrest before the implied consent rights were read. Hough v. State, 279 Ga. 711, 620 S.E.2d 380, 2005 Ga. LEXIS 647 (2005). 25 minute delay in reading implies consent notice acceptable. — Officer’s testimony that: (1) the officer read the Georgia implied consent law from 1997; (2) the officer read the notice for suspects over 21; and (3) the officers read the notice twice because the defendant appeared not to understand was sufficient to prove compliance with the implied consent notice requirements. Cullingham v. State, 242 Ga. App. 499, 529 S.E.2d 199, 2000 Ga. App. LEXIS 126 (2000), cert. denied, No. S00C1057, 2000 Ga. LEXIS 562 (Ga. June 30, 2000). Trial court did not err in denying the defendant’s motion to suppress as an officer’s failure to read the implied consent notice in a timely manner did not warrant suppression given that the 25-minute delay was based on the officer’s need to ensure safety by searching and interviewing the defendant’s intoxicated passenger, investigate and secure the scene, and inventory the defendant’s car before a tow truck arrived. Dunbar v. State, 283 Ga. 662 40-5-67.1 DRIVERS’ LICENSES App. 872, 643 S.E.2d 292, 2007 Ga. App. LEXIS 218 (2007). Results of test suppressed when information misleading. — When the trial court found that the information given the defendant regarding the defendant’s right to an independent test was substantially misleading, inaccurate, extraneous, and relevant to the defendant’s decision whether to agree to the state-administered test, it was not error for the court to grant the defendant’s motion to suppress. State v. Terry, 236 Ga. App. 248, 511 S.E.2d 608, 1999 Ga. App. LEXIS 142 (1999). Substantial evidence supported the trial court’s decision to grant the defendant’s motion to suppress evidence that was derived as a result of the defendant’s submission to a breath test during a traffic stop after the defendant’s consent to take the test was based, at least in part, on misleading information from the police officer that the defendant’s out-of-state license could be suspended if the defendant refused to submit to the test; the officer had no authority to implement such a penalty for refusal. State v. Peirce, 257 Ga. App. 623, 571 S.E.2d 826, 2002 Ga. App. LEXIS 1240 (2002). Trial court erred in denying the defendant’s motion to suppress because the defendant’s final consent to a blood test was given only after the trooper misinformed the defendant of the consequences of refusing to take a blood test and the defendant appeared to believe that the defendant’s Washington driver’s license would be revoked if the defendant refused. Hernandez v. State, 348 Ga. App. 569, 824 S.E.2d 67, 2019 Ga. App. LEXIS 48 (2019). Error not to have supressed test results. — Trial court erred when the court did not suppress the defendant’s breath test because the implied consent warning read to the defendant by the arresting officer was misleading, inaccurate, and coercive; however, there was sufficient evidence that the defendant was a less safe driver. Kitchens v. State, 258 Ga. App. 411, 574 S.E.2d 451, 2002 Ga. App. LEXIS 1475 (2002). Error in admitting chemical test results harmless in light of other evidence. — While the appeals court agreed that the trial court erred in 40-5-67.1 denying the defendant’s motion to suppress the results of the chemical test of the defendant’s blood, the error was harmless as other evidence presented by the state, specifically the defendant’s admission to being intoxicated and the testimony of other witnesses describing their observations, proved the defendant’s intoxication. Harrelson v. State, 287 Ga. App. 664, 653 S.E.2d 98, 2007 Ga. App. LEXIS 1055 (2007). Warning to commercial driver. — Implied consent warning given to a commercial driver stating: “If you refuse this testing, you will be disqualified from operating a commercial motor vehicle for a minimum period of one year” was a correct statement of the consequences for a refusal to submit to alcohol testing. Roberson v. State, 228 Ga. App. 416, 491 S.E.2d 864, 1997 Ga. App. LEXIS 1143 (1997). Notices advising the defendant that if the defendant refused testing the defendant would be disqualified from operating a commercial motor vehicle for a minimum of one year were adequate, even though the notices did not advise the defendant that refusal to submit to the tests could also disqualify the defendant from operating a private motor vehicle. State v. Becker, 240 Ga. App. 267, 523 S.E.2d 98, 1999 Ga. App. LEXIS 1314 (1999), cert. denied, No. S00C0238, 2000 Ga. LEXIS 195 (Ga. Feb. 25, 2000). Trial court erred in concluding that the difference between the implied consent warning for suspects over age 21 and the warning for commercial drivers was within the range of substantial compliance and did not render the warning insufficiently accurate because overstating the legal limit might have led the defendant to subject to testing. Gelzer v. State, 347 Ga. App. 219, 818 S.E.2d 677, 2018 Ga. App. LEXIS 494 (2018). Defendant was properly advised. — Defendant was not entitled to have the results of a breath test excluded because the officer’s failure to designate a specific state-administered test for which consent was being requested did not change the meaning of the notice required under O.C.G.A. § 40-5-67.1; the defendant was under notice that state-administered 663 40-5-67.1 MOTOR VEHICLES & TRAFFIC Advisement to Driver of Rights (Cont’d) chemical tests would be of the defendant’s blood, breath, urine, or other bodily substances. Nagata v. State, 319 Ga. App. 513, 736 S.E.2d 474, 2013 Ga. App. LEXIS 2 (2013). Since the defendant did not assert that the defendant was under 21 or occupied a commercial vehicle, the notice of implied consent for those over 21 was the only appropriate notice for the officer to have read to the defendant, who held a license from North Carolina. State v. Barnard, 321 Ga. App. 20, 740 S.E.2d 837, 2013 Ga. App. LEXIS 308 (2013). Driver Incapable of Understanding Rights Advisement, not understanding, is all that is required. — All drivers are entitled only to be advised of their rights under the implied consent law, that is, to have the implied consent notice read to the drivers, and the law does not require the arresting officer to ensure that the driver understands the implied consent notice. Furcal-Peguero v. State, 255 Ga. App. 729, 566 S.E.2d 320, 2002 Ga. App. LEXIS 655 (2002), cert. denied, No. S02C1523, 2002 Ga. LEXIS 708 (Ga. Sept. 6, 2002), cert. denied, 537 U.S. 1233, 123 S. Ct. 1356, 155 L. Ed. 2d 197, 2003 U.S. LEXIS 1769 (2003). When an officer read a defendant an implied consent notice under O.C.G.A. § 40-5-67.1(b) accurately and timely, the notice was valid irrespective of the defendant’s claimed inability to understand the notice; thus, even if the defendant’s later refusal to provide a breath sample resulted from a failure to comprehend the consequences of the defendant’s conduct, the refusal was admissible against the defendant. State v. Stewart, 286 Ga. App. 542, 649 S.E.2d 525, 2007 Ga. App. LEXIS 682 (2007), cert. denied, No. S07C1851, 2008 Ga. LEXIS 120 (Ga. Jan. 28, 2008). Results of blood test admissible though defendant unconscious. — When the evidence shows that advice as to independent tests available cannot be given because of unconsciousness, it was 40-5-67.1 the intent of the General Assembly that, under the exigent circumstances, the officer lawfully can extract a blood specimen under the aegis of protection of evidence. Smith v. State, 143 Ga. App. 347, 238 S.E.2d 698, 1977 Ga. App. LEXIS 2314 (1977) (decided under former Code 1933, § 68A-902.1). For blood drawn from an unconscious driver to be used for a blood alcohol test it is not necessary that the state show that the driver was informed, upon regaining consciousness of the right to refuse such testing. Long v. State, 176 Ga. App. 89, 335 S.E.2d 587, 1985 Ga. App. LEXIS 2288 (1985). Even if the defendant was unconscious or semi-conscious, and thereby incapable of refusing to consent to a blood test, the results of the test were nevertheless admissible. Holmes v. State, 180 Ga. App. 787, 350 S.E.2d 497, 1986 Ga. App. LEXIS 2266 (1986); Curtis v. State, 182 Ga. App. 388, 355 S.E.2d 741, 1987 Ga. App. LEXIS 2616 (1987). Subsequent administration of test required reading notice again. — Because a defendant, who was charged with driving under the influence in violation of O.C.G.A. § 40-6-391, was confused after a police officer read the defendant the implied consent warning, and the defendant failed to respond to the officer’s request to administer the chemical breath test, such a response was tantamount to a refusal, and accordingly, when the defendant was then taken to a detention center it was error to administer the test without the defendant being asked to consent again or without reading the implied consent warnings pursuant to O.C.G.A. § 40-5-67.1, and suppression of the results was required. State v. Adams, 270 Ga. App. 878, 609 S.E.2d 378, 2004 Ga. App. LEXIS 1622 (2004). Timing of warning. — When there was a perceived threat of a fire or explosion at the accident scene and an apparent need for prompt medical transportation of the defendant for medical treatment, there was a fair risk that the defendant would not have been able to make an intelligent choice concerning the state’s request for a blood 664 40-5-67.1 DRIVERS’ LICENSES test, and the implied consent warning given at the hospital was timely given. Townsend v. State, 236 Ga. App. 530, 511 S.E.2d 587, 1999 Ga. App. LEXIS 123 (1999), cert. denied, No. S99C0902, 1999 Ga. LEXIS 604 (Ga. June 11, 1999). Spanish speaking drivers. — Results of state-administered blood alcohol test given to a driver suspected of driving under the influence who could not speak English and who was only advised of the driver’s rights under the implied consent statute in English were admissible because the driver consented to chemical intoxication tests by driving on the state’s roads, because the officer advised the defendant of the defendant’s implied consent rights, albeit in English, and because the defendant did not withdraw consent. Furthermore, admissibility of a state-administered test of the blood alcohol level of a person suspected of driving under the influence is not conditioned on the state’s showing of a knowing and intelligent waiver of the “right” to an independent test. Furcal-Peguero v. State, 255 Ga. App. 729, 566 S.E.2d 320, 2002 Ga. App. LEXIS 655 (2002), cert. denied, No. S02C1523, 2002 Ga. LEXIS 708 (Ga. Sept. 6, 2002), cert. denied, 537 U.S. 1233, 123 S. Ct. 1356, 155 L. Ed. 2d 197, 2003 U.S. LEXIS 1769 (2003). Refusal by Driver to Submit to Test Constitutionality. — Georgia Supreme Court concluded that Ga. Const. 1983, Art. I, Sec. I, Para. XVI precluded admission of evidence that the suspect refused to consent to a breath test; thus, O.C.G.A. §§ 40-5-67.1(b) and 40-6-392(d) were unconstitutional to the extent that the statutes allow the defendant’s refusal to submit to a breath test to be admitted into evidence at a criminal trial. Elliott v. State, 305 Ga. 179, 824 S.E.2d 265, 2019 Ga. LEXIS 112 (2019). Georgia Supreme Court held defendant had right to refuse to perform preliminary breath test and field sobriety tests under Georgia Constitution, and evidence of defendant’s refusals could not be introduced at trial. Ammons v. State, 315 Ga. 149, 880 S.E.2d 544, 2022 Ga. LEXIS 295 (2022). 40-5-67.1 Georgia Supreme Court held that the Georgia Constitution’s privileges and immunities clause did not bar the admission of evidence that defendant refused to consent to a blood test. Ammons v. State, 315 Ga. 149, 880 S.E.2d 544, 2022 Ga. LEXIS 295 (2022). License suspended only when person refuses test. — Only when a person has refused to submit to the chemical test upon the request of the law enforcement officer shall that person’s license be suspended under the law. Hardison v. Chastain, 151 Ga. App. 678, 261 S.E.2d 425, 1979 Ga. App. LEXIS 2745 (1979) (decided under former Code 1933, § 68A-902.1). Arresting officer cannot take words of others as to refusal. — Simple question by the arresting officer as to whether or not the defendant was refusing the chemical blood test would have settled this issue, but the law enforcement officer did not ask the question, but took the words of others that the defendant had refused to take the test, and, therefore, the defendant’s license could not be suspended. Hardison v. Chastain, 151 Ga. App. 678, 261 S.E.2d 425, 1979 Ga. App. LEXIS 2745 (1979) (decided under former Code 1933, § 68A-902.1). Refusal to submit to test based on “bad advice.” — An officer is not required to ensure that a suspect be provided an environment free from another’s “bad advice” when deciding whether to cooperate with a properly administered implied consent notice, especially when that advice does not enure to the state’s benefit and especially when the suspect is equally free to ignore such advice. State v. Marks, 239 Ga. App. 448, 521 S.E.2d 257, 1999 Ga. App. LEXIS 1028 (1999). Form 1205. — O.C.G.A. § 40-5-67.1 expressly limits the scope of a hearing to challenge a license suspension to six enumerated issues including the lawfulness of the arrest, whether the motorist was informed of the implied consent rights, whether the motorist refused testing, the results of any test given, whether the testing was properly administered, and whether the arresting 665 40-5-67.1 MOTOR VEHICLES & TRAFFIC Refusal by Driver to Submit to Test (Cont’d) officer completed the DPS Form 1205 and submitted the Form to the department has no bearing on these issues, and nothing in the statute requires that the department tender the Form into evidence. Miles v. Ahearn, 243 Ga. App. 741, 534 S.E.2d 175, 2000 Ga. App. LEXIS 549 (2000), cert. denied, No. S00C1465, 2000 Ga. LEXIS 788 (Ga. Oct. 20, 2000). If the arresting officer testifies in person as to the events of the arrest, the DPS Form 1205 clearly is not necessary to the resolution of the issues enumerated in O.C.G.A. § 40-5-67.1 and there is no need for an initial showing that the license was suspended because the fact of the suspension is not at issue. Miles v. Ahearn, 243 Ga. App. 741, 534 S.E.2d 175, 2000 Ga. App. LEXIS 549 (2000), cert. denied, No. S00C1465, 2000 Ga. LEXIS 788 (Ga. Oct. 20, 2000). Pretense of complying with test. — That the defendant made a pretense of complying with an intoximeter test, but in fact failed to inflate the balloon, authorizes a finding that the defendant refused to submit to the test. The implied consent law requires a meaningful submission to the test. Howard v. Cofer, 150 Ga. App. 579, 258 S.E.2d 195, 1979 Ga. App. LEXIS 2213 (1979), superseded by statute as stated in Groutas v. McCoy, 219 Ga. App. 252, 464 S.E.2d 657, 1995 Ga. App. LEXIS 1002 (1995) (decided under former Code 1933, § 68A-902.1). Not completing test within judgment of test operator. — When Ga. L. 1968, p. 448 fails to set out what constitutes a complete breath alcohol test, a showing that the driver of the automobile did not complete the test within the judgment of the operator is not evidence of a “refusal to submit” within the contemplation of the law. Department of Pub. Safety v. Orr, 122 Ga. App. 439, 177 S.E.2d 164, 1970 Ga. App. LEXIS 892 (1970) (decided under Ga. L. 1968, p. 448). Defendant’s failure to recall not inconsistent with state’s showing of refusal. — Defendant’s failure to recall the circumstances following a collision did not contradict the state’s prima facie 40-5-67.1 showing that the defendant was in a communicative condition — not dead, unconscious, or otherwise incapable of refusing the test — when informed of the defendant’s rights and thereafter refused chemical testing of the defendant’s blood. Duncan v. State, 183 Ga. App. 368, 358 S.E.2d 910, 1987 Ga. App. LEXIS 2704 (1987). Evidence of refusal admissible. — Defendant’s refusal to take the chemical test was admissible in evidence notwithstanding the fact that the arresting officer mistakenly told the defendant that the defendant’s license had already been revoked, since the officer’s mistake concerning the license was an honest one, which had nothing to do with the defendant’s options under the implied consent statute. Sorrow v. State, 178 Ga. App. 83, 342 S.E.2d 20, 1986 Ga. App. LEXIS 2489 (1986). Person is required to submit to a test to determine if the person is under the influence of alcohol or other drugs; however, a driver has the right to refuse to take a state administered test, subject to the mandate that exercise of the right of refusal shall be admissible in the driver’s criminal trial. State v. Leviner, 213 Ga. App. 99, 443 S.E.2d 688, 1994 Ga. App. LEXIS 471 (1994), cert. denied, No. S94C1258, 1994 Ga. LEXIS 940 (Ga. Sept. 9, 1994). In the defendant’s DUI trial, O.C.G.A. § 40-6-391(a)(1), because a breath test was permitted as a search incident to the defendant’s DUI arrest, the defendant’s refusal to take the breath test was not the exercise of the constitutional right against unreasonable searches and seizures, and evidence of the defendant’s refusal was properly admitted under O.C.G.A. § 40-5-67.1(b). Cherry v. State, 345 Ga. App. 409, 813 S.E.2d 408, 2018 Ga. App. LEXIS 116 (2018), cert. denied, No. S18C1104, 2018 Ga. LEXIS 720 (Ga. Oct. 22, 2018). Silence as refusal. — Defendant’s refusal to permit a chemical analysis to be made of the defendant’s blood, breath, urine, or other bodily substance at the time of the defendant’s arrest is admissible in evidence against the defendant, and there is no reason that 666 40-5-67.1 DRIVERS’ LICENSES silence in the face of a request to take such a test should be treated any differently than a refusal. Miles v. State, 236 Ga. App. 632, 513 S.E.2d 39, 1999 Ga. App. LEXIS 277 (1999), cert. denied, No. S99C0845, 1999 Ga. LEXIS 570 (Ga. May 28, 1999). When an officer testified that the officer read to the defendant the requisite “implied consent” notice set forth in O.C.G.A. § 40-5-67.1(b), the defendant’s refusal to submit to the test was admissible as evidence against the defendant, and this does not rise to the level of constitutional self-incrimination. Ellison v. State, 242 Ga. App. 636, 530 S.E.2d 524, 2000 Ga. App. LEXIS 284 (2000). After a police officer read the defendant the correct informed consent notice pursuant to O.C.G.A. § 40-5-67.1(b)(2) and the defendant’s questions regarding the defendant’s submission or refusal to submit to the chemical testing were answered accurately, the information was not false or misleading, and the consequences of the defendant’s submission or refusal to submit to the test were provided; thus, there was no substantial basis for a determination that the defendant was incapable of making an informed decision, and the trial court erred in excluding the defendant’s refusal to submit to the testing in that instance. State v. Chun, 265 Ga. App. 530, 594 S.E.2d 732, 2004 Ga. App. LEXIS 173 (2004), cert. denied, No. S04C1056, 2004 Ga. LEXIS 432 (Ga. May 24, 2004). Defendant’s refusal to submit to chemical testing was admissible because, after the defendant refused, the officers improperly obtained a search warrant and forcibly conducted the testing; the remedy for the officers’ misdeed was exclusion of the test results, not exclusion of evidence of the defendant’s refusal to submit to testing. Harris v. State, 272 Ga. App. 366, 612 S.E.2d 557, 2005 Ga. App. LEXIS 289 (2005), cert. denied, No. S05C1208, 2005 Ga. LEXIS 620 (Ga. Sept. 19, 2005). Defendant’s refusal to submit to chemical testing was admissible even though the state introduced evidence of the blood alcohol level from the defendant’s medical records; the test results and the refusal to submit were admissible for different reasons and the admissibility of one did not 40-5-67.1 preclude the admissibility of the other. Harris v. State, 272 Ga. App. 366, 612 S.E.2d 557, 2005 Ga. App. LEXIS 289 (2005), cert. denied, No. S05C1208, 2005 Ga. LEXIS 620 (Ga. Sept. 19, 2005). Defendant’s conviction for driving under the influence to the extent that the defendant was a less safe driver under O.C.G.A. § 40-6-391(a)(1) was affirmed as the conviction was supported by sufficient evidence including: (1) the defendant’s admissions that the defendant had been driving a motorcycle and that the defendant had consumed “beer, tequila, and lots of alcohol” earlier in the day; (2) the defendant’s refusal to submit to state-administered chemical testing; and (3) a deputy’s opinion that the defendant was under the influence of alcohol to the extent that the defendant was a less safe driver. Kimbrell v. State, 280 Ga. App. 867, 635 S.E.2d 237, 2006 Ga. App. LEXIS 964 (2006). Trial court erred in suppressing the defendant’s refusal to submit to a stateadministered chemical breath test as the implied consent notice given by a sheriff’s deputy was substantially accurate and timely given, and irrespective of whether the refusal resulted from the defendant’s confusion, it nevertheless remained a refusal. State v. Brookbank, 283 Ga. App. 814, 642 S.E.2d 885, 2007 Ga. App. LEXIS 202 (2007). Defendant’s refusal to submit to a stateadministered chemical test of blood, breath, urine, or other bodily substance was admissible as evidence of the defendant’s intoxication. Stewart v. State, 288 Ga. App. 735, 655 S.E.2d 328, 2007 Ga. App. LEXIS 1281 (2007). Evidence of refusal. — State was not collaterally estopped from introducing evidence of the defendant’s refusal to submit to a breath test when the state was not given the opportunity to fully litigate the issue at an administrative hearing regarding the defendant’s driver’s license suspension. Swain v. State, 251 Ga. App. 110, 552 S.E.2d 880, 2001 Ga. App. LEXIS 836 (2001), cert. denied, No. S01C1804, 2002 Ga. LEXIS 412 (Ga. Apr. 29, 2002). Effect of refusal. — By refusing the state-administered breath test after being advised under O.C.G.A. § 40-5-67.1, the 667 40-5-67.1 MOTOR VEHICLES & TRAFFIC Refusal by Driver to Submit to Test (Cont’d) defendant forfeited any right to an independent blood test. Renkiewicz v. State, 283 Ga. App. 692, 642 S.E.2d 384, 2007 Ga. App. LEXIS 170 (2007). Conduct constituting refusal. — When a defendant went to a breathalyzer machine but plugged the hole with the defendant’s tongue and declined to blow into the tube, the defendant’s conduct could be viewed as a refusal to take the test; there was no evidence that the defendant suffered from a physical or medical condition that would prevent the defendant from providing an adequate breath sample. State v. Stewart, 286 Ga. App. 542, 649 S.E.2d 525, 2007 Ga. App. LEXIS 682 (2007), cert. denied, No. S07C1851, 2008 Ga. LEXIS 120 (Ga. Jan. 28, 2008). Consent obtained by misleading information. — In a prosecution for driving under the influence, when the defendant was deprived by the totality of the inaccurate, misleading, and/or inapplicable information given to the defendant by the arresting officer of making an informed choice under the implied consent statute, the defendant’s refusal to consent to a urine test was rendered inadmissible. State v. Leviner, 213 Ga. App. 99, 443 S.E.2d 688, 1994 Ga. App. LEXIS 471 (1994), cert. denied, No. S94C1258, 1994 Ga. LEXIS 940 (Ga. Sept. 9, 1994). Consent obtained by coercion. — Defendant’s conviction was properly reversed as the police improperly threatened to obtain a search warrant to obtain blood and urine for testing through a catheter after the defendant invoked the right under the implied consent law to refuse the testing. State v. Collier, 279 Ga. 316, 612 S.E.2d 281, 2005 Ga. LEXIS 294 (2005). Refusal of nonresident driver. — Proper implied consent warning as enacted by the legislature was read to the defendant without error, notwithstanding the defendant’s contention that the defendant refused to submit to the requested blood test because the defendant did not believe there would be 40-5-67.1 any penalties in the defendant’s home state of South Carolina, i.e., that only the defendant’s driving privileges in Georgia would be affected. Wofford v. State, 234 Ga. App. 316, 506 S.E.2d 656, 1998 Ga. App. LEXIS 1207 (1998), cert. denied, No. S99C0019, 1999 Ga. LEXIS 68 (Ga. Jan. 15, 1999), overruled, State v. Lane, 308 Ga. 10, 838 S.E.2d 808, 2020 Ga. LEXIS 98 (2020). Compelled testing not permitted. — Police do not have the authority to seek a search warrant to compel a defendant to submit blood and urine samples for drug testing after a defendant invoked the right under the implied consent law to refuse the testing. State v. Collier, 279 Ga. 316, 612 S.E.2d 281, 2005 Ga. LEXIS 294 (2005). Search warrant obtained after refusal. — Search warrant used to take the defendant’s blood after the defendant refused testing was valid under the implied consent statute because the state was permitted to apply for a warrant to perform the test and the officer provided sufficient cause to obtain the warrant for the defendant’s blood. McAllister v. State, 325 Ga. App. 583, 754 S.E.2d 376, 2014 Ga. App. LEXIS 27 (2014). Breath test admissible despite initial refusal. — At the time of a defendant’s arrest for DUI, the defendant refused to submit to a breath test; after the officer gave the defendant the chance to rescind this refusal, the defendant agreed to take the test in the absence of any threats or inducements. As the officer did not act unreasonably in attempting to induce the defendant to rescind the initial refusal, the test results were admissible. State v. Quezada, 295 Ga. App. 522, 672 S.E.2d 497, 2009 Ga. App. LEXIS 26 (2009). Jury properly instructed that jury could infer that defendant would have tested positive. — Trial judge was authorized to instruct a jury in a defendant’s trial for driving under the influence that the jury could infer from the defendant’s refusal to submit to state-administered chemical tests of the defendant’s blood and breath that the defendant would have tested positively for alcohol. Blankenship v. State, 301 Ga. 668 40-5-67.1 DRIVERS’ LICENSES App. 602, 688 S.E.2d 395, 2009 Ga. App. LEXIS 1421 (2009). Designation of Test by Arresting Officer Arresting officer designates particular chemical test. — Under a theory of implied consent, O.C.G.A. § 40-5-67.1 effectively mandates that a person charged with driving under the influence submit to whichever recognized chemical test (blood, breath, urine, etc.) is designated by the arresting officer. Steed v. City of Atlanta, 172 Ga. App. 839, 325 S.E.2d 165, 1984 Ga. App. LEXIS 2686 (1984). Authority of officer to designate type of chemical test. — O.C.G.A. § 40-5-67.1, read in pari materia with O.C.G.A. §§ 40-5-55 and 40-6-392, authorizes a law enforcement officer to designate the appropriate chemical test to be administered — breath, blood, urine, or other bodily substance — for the detection of the source of impairment as suspected by the officer. Jordan v. State, 223 Ga. App. 176, 477 S.E.2d 583, 1996 Ga. App. LEXIS 1042 (1996), cert. denied, No. S97C0238, 1997 Ga. LEXIS 234 (Ga. Feb. 14, 1997). Blood or breath testing not prerequisite to requirement for urine sample. — O.C.G.A. § 40-5-67.1, construed with O.C.G.A. §§ 40-5-55 and 40-6-392, does not require blood or breath testing before an officer may require a suspect to provide a urine sample for analysis for the presence of alcohol, drugs, or marijuana. State v. Sumlin, 224 Ga. App. 205, 480 S.E.2d 260, 1997 Ga. App. LEXIS 14 (1997). Results of test not designated not inadmissible. — When an arresting officer requested a blood test on the citation but a breath test was administered instead by another officer upon oral instructions from a “paddy wagon” driver, the breath test was not inadmissible on the grounds that the test violated the statutory directive that “the requesting law enforcement officer shall designate which of the aforesaid test shall be administered.” Steed v. City of Atlanta, 172 Ga. App. 839, 325 S.E.2d 165, 1984 Ga. App. LEXIS 2686 (1984) (decided under O.C.G.A. § 40-5-55). 40-5-67.1 Miranda warnings are not necessary before requesting additional tests now that the 1998 amendment of O.C.G.A. § 40-5-67.1 authorizes an officer to require additional tests. State v. Moses, 237 Ga. App. 764, 516 S.E.2d 807, 1999 Ga. App. LEXIS 566 (1999). Trial court’s suppression of urine test results could not be sustained on the ground that Miranda warnings were not given to a DUI arrestee before the arrestee decided to submit to a urine test after taking a breath or blood test. State v. Coe, 243 Ga. App. 232, 533 S.E.2d 104, 2000 Ga. App. LEXIS 447 (2000), overruled in part, Olevik v. State, 302 Ga. 228, 806 S.E.2d 505, 2017 Ga. LEXIS 898 (2017), overruled in part, State v. Turnquest, 305 Ga. 758, 827 S.E.2d 865, 2019 Ga. LEXIS 320 (2019). An arrestee is not, under Georgia constitutional or statutory law, entitled to Miranda warnings before deciding whether to submit to the state’s request for an additional test of breath, blood, or urine. State v. Coe, 243 Ga. App. 232, 533 S.E.2d 104, 2000 Ga. App. LEXIS 447 (2000), overruled in part, Olevik v. State, 302 Ga. 228, 806 S.E.2d 505, 2017 Ga. LEXIS 898 (2017), overruled in part, State v. Turnquest, 305 Ga. 758, 827 S.E.2d 865, 2019 Ga. LEXIS 320 (2019). Practice and Procedure No requirement to prove age if proper warning given and acknowledged. — O.C.G.A. § 40-5-67.1(b) specifies two different implied-consent notices based on whether a driving under the influence suspect is age 21 or over; when the defendant specifically stipulated at trial that the police officer read the correct warning, whether the state properly proved that the defendant was over 21 was irrelevant. Ahn v. State, 255 Ga. App. 547, 565 S.E.2d 823, 2002 Ga. App. LEXIS 630 (2002), cert. denied, No. S02C1519, 2002 Ga. LEXIS 692 (Ga. Sept. 6, 2002). DUI arrestee had no standing to challenge statute. — Plaintiff, whose license was confiscated by the officer at the time of arrest for DUI and who was issued a citation allowing plaintiff to drive pending resolution of plaintiff’s case, did 669 40-5-67.1 MOTOR VEHICLES & TRAFFIC Practice and Procedure (Cont’d) not have standing to challenge the administrative suspension procedures established by O.C.G.A. § 40-5-67.1. McGraw v. State, 230 Ga. App. 843, 498 S.E.2d 314, 1998 Ga. App. LEXIS 306 (1998). No requirement advising test results can be used at trial. — Required warnings for breath test under O.C.G.A. § 40-5-67.1 does not include language advising that the test results could be used in a trial. St. Germain v. State, 255 Ga. App. 864, 567 S.E.2d 107, 2002 Ga. App. LEXIS 787 (2002). Challenge to procedures used in reading to the defendant the statutory implied consent warning and the proper working of the Intoxilyzer 5000 machine should have been appropriately raised by a motion in limine, not a motion to suppress. Goddard v. State, 244 Ga. App. 730, 536 S.E.2d 160, 2000 Ga. App. LEXIS 739 (2000). Service requirements met. — Trial court erred in substituting the court’s judgment for that of the Georgia Department of Motor Vehicle Services and in setting aside a driver’s license suspension because an officer complied with O.C.G.A. § 40-5-67.1(f)(1) by handing the driver a copy of the DPS Form 1205 when the driver was arrested. Davis v. Brown, 274 Ga. App. 48, 616 S.E.2d 826, 2005 Ga. App. LEXIS 666 (2005). Failure to timely request hearing. — Trial court erred by reversing the decision of the Georgia Department of Driver Services because the evidence supported the decision of the department in denying, as untimely, the driver’s request for an administrative license suspension hearing, pursuant to O.C.G.A. § 40-5-67.1(g), since the actions of the driver’s attorney in failing to mail a timely request for a hearing were imputed to the driver. Mikell v. Hortenstine, 334 Ga. App. 621, 780 S.E.2d 53, 2015 Ga. App. LEXIS 687 (2015). Failure to hold hearing within 30 days. — Failure to hold a hearing within the 30-day period provided for in former § 40-5-55(d) (see now subsection (g) of 40-5-67.1 O.C.G.A. § 40-5-67.1) did not warrant dismissal of the charges under the implied consent law. That provision was not mandatory but directory. Hardison v. Fayssoux, 168 Ga. App. 398, 309 S.E.2d 397, 1983 Ga. App. LEXIS 2788 (1983). Family emergency causing failure to make timely response. — When the driver left Georgia shortly after the driver received notification of suspension of the driver’s license and the right to a hearing in order to travel to another state to take care of the driver’s daughter following surgery, this unfortunate family emergency did not rise to the level of a legal excuse for failing to respond within the mandatory time period. Earp v. Harris, 191 Ga. App. 414, 382 S.E.2d 156, 1989 Ga. App. LEXIS 680 (1989) (decided under O.C.G.A. § 40-5-55). Mailing request for hearing. — Date on which a document is postmarked, rather than the date on which a document is mailed, is determinative of the document’s timeliness; thus, in deciding whether the mailing of a request for a hearing was made within the time limit of O.C.G.A. § 40-5-67.1(g), the trial court erred in determining that the date on which the document was mailed was controlling. Department of Pub. Safety v. Ramey, 215 Ga. App. 334, 450 S.E.2d 332, 1994 Ga. App. LEXIS 1193 (1994). Instruction based upon § 40-555(a). — In a prosecution for driving under the influence of alcohol, since there was no jury question as to consent, an instruction to the jury based upon former Code 1933, § 68B-306(a) (see now O.C.G.A. § 40-5-55), was in error, but it was harmless error. Hardeman v. State, 147 Ga. App. 120, 248 S.E.2d 189, 1978 Ga. App. LEXIS 2805 (1978) (decided under former Code 1933, § 68B-306. Charge including the first sentence of O.C.G.A. § 40-5-55(a) was not prejudicial. Trotter v. State, 179 Ga. App. 314, 346 S.E.2d 390, 1986 Ga. App. LEXIS 1908 (1986); Brantley v. State, 199 Ga. App. 623, 405 S.E.2d 533, 1991 Ga. App. LEXIS 579 (1991), cert. denied, No. S91C1112, 1991 Ga. LEXIS 773 (Ga. June 27, 1991). “Voluntariness” charge not required. — Trial court did not err in refusing appellant’s request to charge on 670 40-5-67.1 DRIVERS’ LICENSES the “voluntariness” of appellant’s consent to a scientific testing of appellant’s bodily fluids. Kirkland v. State, 206 Ga. App. 27, 424 S.E.2d 638, 1992 Ga. App. LEXIS 1547 (1992). Implied consent. — State was not required to prove the defendant’s compliance with the mandatory language of O.C.G.A. § 40-5-67.1 since the defendant had expressly stipulated that “implied consent was given.” Gill v. State, 229 Ga. App. 462, 494 S.E.2d 259, 1997 Ga. App. LEXIS 1432 (1997). Trial court did not err by denying defendant’s motion to suppress defendant’s refusal to consent to the state-administered blood test because the record showed that defendant had been arrested when the officer read defendant the implied-consent notice, as while being treated by the EMT at the scene of the accident, defendant repeatedly asked to be taken home and was told by the police officers that defendant could either go to the hospital or be taken to jail. In addition, the record explicitly showed one of the officers informing defendant that defendant was being placed under arrest for driving under the influence of alcohol. Quint v. State, 367 Ga. App. 339, 886 S.E.2d 1, 2023 Ga. App. LEXIS 154 (2023). Independent test upon request. — Although the police officer fulfilled the officer’s duty of reading to the defendant the applicable implied consent notice about submitting to state-administered chemical tests for the purpose of determining if the defendant was under the influence of alcohol, the failure to administer the independent urine test that the defendant requested pursuant to that notice meant that the state-administered breath test was inadmissible to support the defendant’s DUI conviction. Johnson v. State, 261 Ga. App. 633, 583 S.E.2d 489, 2003 Ga. App. LEXIS 729 (2003), overruled on other grounds, State v. Henry, 312 Ga. 632, 864 S.E.2d 415, 2021 Ga. LEXIS 650 (2021). Arresting officer did not make a reasonable effort to accommodate a defendant’s request for an independent blood test by qualified personnel of the defendant’s own choosing, as required under O.C.G.A. §§ 40-5-67.1(b)(2) and 40-6-392(a)(3), 40-5-67.1 because the officer unilaterally chose the location for the independent test. State v. Metzager, 303 Ga. App. 17, 692 S.E.2d 687, 2010 Ga. App. LEXIS 266 (2010). O.C.G.A. § 40-6-392(a)(4), with regard to an independent chemical test of blood, specifies no deadline for requesting full information, no timetable for supplying the information, and no penalty for the state’s failure to produce the information. State v. Thompson, 334 Ga. App. 692, 780 S.E.2d 67, 2015 Ga. App. LEXIS 699 (2015), cert. denied, No. S16C0479, 2016 Ga. LEXIS 228 (Ga. Mar. 7, 2016). Failure to address voluntariness of consent. — In a DUI case, the trial court erred by failing to address the issue of the voluntariness of the defendant’s consent to the breath test under the totality of the circumstances, including the defendant’s contention that the defendant was uncomfortable and in pain when the implied consent notice was read and that the implied consent notice contained the misleading, coercive threat that the refusal to submit to the breath test could be used as evidence at trial. Melton v. State, 354 Ga. App. 828, 841 S.E.2d 481, 2020 Ga. App. LEXIS 227 (2020). Warrant in testing DUI suspects. — Warrant only authorized testing for alcohol, so testing for drugs exceeded the scope and the police could not use a lawful blood draw to then test for anything without limitation as the privacy interest in blood requires a warrant specifically authorizing drug testing. State v. De La Paz, 370 Ga. App. 853, 899 S.E.2d 447, 2024 Ga. App. LEXIS 98 (2024). Two warrants were held not required when law enforcement wishes to test a DUI suspect’s blood. One warrant will suffice, but that warrant’s terms and limitations must be honored by law enforcement and will be enforced by the courts. State v. De La Paz, 370 Ga. App. 853, 899 S.E.2d 447, 2024 Ga. App. LEXIS 98 (2024). Erroneous admission of test results. — When an officer failed to read appropriate warnings to the defendant, it was error to admit results of the defendant’s breath tests, even though the defendant had stipulated to the facts that would be demonstrated by the results of 671 40-5-67.1 MOTOR VEHICLES & TRAFFIC Practice and Procedure (Cont’d) the tests, i.e., that the defendant had a blood alcohol level of .207. Richards v. State, 269 Ga. 483, 500 S.E.2d 581, 1998 Ga. LEXIS 560 (1998) (reversing Richards v. State, 225 Ga. App. 777, 484 S.E.2d 683, 1997 Ga. App. LEXIS 350 (1997)). Test results admissible. — Trial court did not err in admitting at trial the defendant’s failure of the horizontal gaze nystagmus test in a case involving vehicular homicide, driving under the influence, and other offenses because that evidence was admissible not only because the evidence showed impairment, but also because the evidence tended to prove that the defendant was a less safe driver at the time the van struck and killed the pedestrian. Cromartie v. State, 275 Ga. App. 209, 620 S.E.2d 413, 2005 Ga. App. LEXIS 886 (2005). Because the Miranda requirements were not triggered until the defendant’s arrest, and after performance of the field sobriety tests, suppression of the test results was not required. Doyle v. State, 281 Ga. App. 592, 636 S.E.2d 751, 2006 Ga. App. LEXIS 1176 (2006), overruled in part, State v. Turnquest, 305 Ga. 758, 827 S.E.2d 865, 2019 Ga. LEXIS 320 (2019). Trial court properly denied a defendant’s motion to suppress the results of the breath test administered with regard to the defendant’s conviction for driving with an unlawful alcohol concentration because the defendant’s statement that “I will take a blood test” was not a request for an independent test under the implied consent law but was an attempt to designate which test would be administered by the state, which was not an option for the defendant; further, the officer’s response to the defendant merely clarified the designation that the state-administrated test would be a breath test and did not mislead the defendant regarding the defendant’s right to have an independent chemical test. Anderton v. State, 283 Ga. App. 493, 642 S.E.2d 137, 2007 Ga. App. LEXIS 92 (2007), overruled on other grounds, State v. Henry, 312 Ga. 632, 864 S.E.2d 415, 2021 Ga. LEXIS 650 (2021). The trial court did not err in denying the defendant’s motion in limine to sup- 40-5-67.1 press the results of a state-administered breath test as an officer’s implied consent warning was substantively accurate so as to allow the defendant to make an informed decision about whether to consent to the test, and solely referred to the defendant’s privilege to drive within the state of Georgia with a Georgia driver’s license, and not the defendant’s Pennsylvania license; further, the officer’s initial statement was nothing more than an attention-grabbing preface, and as such did not constitute a substantive change that altered the meaning of the implied consent notice thereafter recited to the defendant. McHugh v. State, 285 Ga. App. 131, 645 S.E.2d 619, 2007 Ga. App. LEXIS 443 (2007). Trial court did not err in denying the defendant’s motion to exclude the results of a state-administered breath test because a state trooper’s initial overstatement of the legal blood alcohol concentration, which the trooper corrected immediately, was not so misleading that it rendered the defendant incapable of making an informed decision about whether to submit to chemical testing; the videotape recording demonstrated that before the trooper read the implied consent notice, the defendant told the trooper that the defendant knew that 0.08 grams was the legal limit applicable to individuals. Travis v. State, 314 Ga. App. 280, 724 S.E.2d 15, 2012 Ga. App. LEXIS 178 (2012). Court of appeals did not err in reversing an order granting the defendant’s motion to suppress evidence of the state’s breath test results because the procedures followed by the state comported with the fundamental fairness required by due process; the police officer delivered to the defendant the required implied consent notice in an accurate and timely manner, thereby informing the defendant of the right to an independent test under O.C.G.A. § 40-6-392(a)(3), and thus, the state was under no constitutional duty to immediately inform the defendant of the results of the state-administered breath test. Padidham v. State, 291 Ga. 99, 728 S.E.2d 175, 2012 Ga. LEXIS 440 (2012). Trial court properly denied the defendant’s motion to suppress the results of 672 40-5-67.1 DRIVERS’ LICENSES the defendant’s breath test because the officer’s reading of the implied consent notice was accurate, the officer asked whether the defendant consented, the officer told the defendant to answer yes or no, and the officer’s statement, that “as long as you continue to be cool and be cooperative, I’ll make the process go by real quick for you,” was not coercive or deceptively misleading and did not render defendant incapable of making an informed decision about whether to submit to the breath test. Miller v. State, 317 Ga. App. 504, 731 S.E.2d 393, 2012 Ga. App. LEXIS 749 (2012). Trial court properly denied defendant’s motion in limine to exclude evidence that defendant refused chemical testing based on the testimony of a deputy that while in defendant’s hospital room, a ticket was written for drunk driving and defendant was advised of the custodial arrest; thus, there was no error in the trial court’s determination that a reasonable person in defendant’s position would not think that they were free to leave at the time the deputy read the implied consent warnings. Plemmons v. State, 326 Ga. App. 765, 755 S.E.2d 205, 2014 Ga. App. LEXIS 69 (2014), cert. denied, No. S14C1064, 2014 Ga. LEXIS 572 (Ga. June 30, 2014). Grant of the defendant’s motion to suppress was reversed because the trial court erred in concluding that the defendant did not actually consent to the state-administered blood test under the totality of the circumstances as the undisputed evidence in the video recording demonstrated that the defendant’s consent was free and voluntary and the 20-minute delay in the officer’s implied consent notice resulted from the officer complying with the defendant’s request to perform field sobriety tests. State v. Domenge-Delhoyo, 338 Ga. App. 439, 790 S.E.2d 139, 2016 Ga. App. LEXIS 469 (2016), cert. denied, No. S17C0113, 2017 Ga. LEXIS 261 (Ga. Apr. 17, 2017). In a DUI per se case, the trial court did not err in denying the defendant’s motion to suppress the results of a chemical testing of the defendant’s blood because the defendant freely and voluntarily consented to the test as the defendant gave an affirmative response to the officer’s 40-5-67.1 question pursuant to the implied consent notice; the officer did not employ shows of force; and, at the fire station, the defendant reaffirmed the defendant’s assent before the medic drew the defendant’s blood. Jacobs v. State, 338 Ga. App. 743, 791 S.E.2d 844, 2016 Ga. App. LEXIS 539 (2016), cert. denied, No. S17C0439, 2017 Ga. LEXIS 356 (Ga. May 1, 2017). Defendant’s motion in limine excluding the results of the defendant’s breath test was improperly granted because the evidence, including the videotape of the stop, did not show that the officers used fear, intimidation, threat of physical punishment, or lengthy detention to obtain the defendant’s consent to the test; the defendant’s intoxication, youth, lack of education, or low intelligence did not somehow negate the voluntariness of the defendant’s consent; the implied consent notice read to the defendant informed the defendant of the choice of either agreeing or refusing to submit to chemical testing, and the possible consequences for each choice; and the defendant immediately agreed to submit to the breath test. State v. Young, 339 Ga. App. 306, 793 S.E.2d 186, 2016 Ga. App. LEXIS 615 (2016). Trial court did not err in denying the defendant’s motion to suppress evidence obtained in a warrantless blood test because the implied consent notice was read to the defendant, the defendant gave an affirmative answer to the question posed by the implied-consent language, the defendant did not appear to be impaired to the extent that the defendant did not understand what was being asked, and the officer did not force or coerce the defendant to take the test. McKibben v. State, 340 Ga. App. 89, 796 S.E.2d 478, 2017 Ga. App. LEXIS 15 (2017). Trial court erroneously suppressed the breath-test evidence obtained when the defendant was arrested for, inter alia, driving under the influence of alcohol because there was no evidence that the officer used fear, intimidation, threat of physical punishment, or a lengthy detention to obtain the defendant’s consent to the breath test; there was no evidence that the defendant’s age, intelligence, or level of education hindered the defendant’s ability to understand the implied- 673 40-5-67.1 MOTOR VEHICLES & TRAFFIC Practice and Procedure (Cont’d) consent notice; the notice, as read to the defendant, made it clear that the defendant had the right to refuse testing; and the defendant was advised of the various consequences of the defendant’s refusal to consent to any testing. State v. Jacobs, 342 Ga. App. 476, 804 S.E.2d 132, 2017 Ga. App. LEXIS 361 (2017). Trooper testified to extensive training in administering field sobriety tests, that the trooper had performed the HGN test many times, and described the standard procedure in administering the test, thus, given that evidence, the trial court was authorized to conclude that the trooper substantially performed the test in accordance with training and guidelines. Garrison v. State, 368 Ga. App. 819, 890 S.E.2d 869, 2023 Ga. App. LEXIS 380 (2023). Argument based on machine’s removal or repair. — Trial court properly refused to suppress evidence of a defendant’s chemical breath test; testimony from an officer and proof that a current implied consent card contained the same language as the card used during the defendant’s arrest allowed the trial court to conclude that the officer advised the defendant of the defendant’s implied consent rights, and as there was evidence that the breath test machine was working properly at the time of the defendant’s breath test, any argument regarding the machine’s subsequent removal or repair went to the weight of the results, not their admissibility. Jones v. State, 285 Ga. App. 352, 646 S.E.2d 323, 2007 Ga. App. LEXIS 518 (2007), cert. denied, No. S07C1407, 2007 Ga. LEXIS 758 (Ga. Oct. 9, 2007). Trial court did not err in admitting the results of a blood test administered to the defendant in the course of medical treatment as the right to refuse a state-administered test was entirely independent of the state’s prerogative, pursuant to a warrant obtained in accordance with the Fourth Amendment, to obtain the results as other evidence of a crime. Rylee v. State, 288 Ga. App. 784, 655 S.E.2d 239, 2007 Ga. App. LEXIS 1204 (2007). The trial court did not err in denying the defendant’s motion to suppress the 40-5-67.1 results of a blood test as the notice given to the defendant by a state trooper under the implied consent law, O.C.G.A. § 40-5-67.1(a), was sufficiently accurate to permit the defendant to make an informed decision about whether to consent to testing and the evidence failed to show that the defendant requested an independent test. Collins v. State, 290 Ga. App. 418, 659 S.E.2d 818, 2008 Ga. App. LEXIS 335 (2008), overruled on other grounds, State v. Henry, 312 Ga. 632, 864 S.E.2d 415, 2021 Ga. LEXIS 650 (2021). In defendant’s trial for driving under the influence under 18 U.S.C. §§ 7 and 13 and O.C.G.A. § 40-6-391 and an open container violation under O.C.G.A. § 40-6-253, a motion to suppress evidence obtained as a result of a Selective Traffic Enforcement Program roadblock was denied because the roadblock reasonably fit within the Fourth Amendment constraints. Implied consent protections did not apply to field sobriety tests because the defendant was not under arrest at the time such tests were performed. United States v. Howard, No. CR208-09, 2008 U.S. Dist. LEXIS 72916 (S.D. Ga. Sept. 24, 2008). Test results can be used for driving offenses. — In a prosecution for driving under the influence of marijuana and driving under the influence of drugs to the extent of being a less safe driver, even though the hospital consent form signed by the defendant was entitled “Request for Alcohol Testing,” the test results, which were positive for marijuana, were admissible since the defendant had earlier consented to testing after receiving the required implied consent notice. State v. Lewis, 233 Ga. App. 390, 504 S.E.2d 242, 1998 Ga. App. LEXIS 922 (1998), cert. denied, No. S98C1791, 1998 Ga. LEXIS 1193 (Ga. Nov. 20, 1998). Test results cannot be used for possession offenses. — Because the implied consent warning did not inform the defendant that evidence from a blood test could be used against the defendant for purposes other than determining if the defendant was “under the influence of alcohol or drugs,” test results were properly suppressed in a prosecution of the defendant for possession of cocaine. 674 40-5-67.1 40-5-67.1 DRIVERS’ LICENSES State v. Long, 232 Ga. App. 445, 502 S.E.2d 298, 1998 Ga. App. LEXIS 714 (1998). Defendant’s consent to testing in response to the implied consent warning was given with the understanding that the consent was to determine if the defendant was under the influence for purposes of violations of O.C.G.A. § 40-6-391 and the test results could not be used to support a charge of possession of marijuana. State v. Lewis, 233 Ga. App. 390, 504 S.E.2d 242, 1998 Ga. App. LEXIS 922 (1998), cert. denied, No. S98C1791, 1998 Ga. LEXIS 1193 (Ga. Nov. 20, 1998). Location of subject matter jurisdiction of appeals. — Both the superior court of the county of residence of the petitioner and the Fulton County Superior Court would have subject matter jurisdiction of appeals arising out of applications of Ga. L. 1968, p. 448 (see now O.C.G.A. § 40-5-67.1). Burson v. Webb, 125 Ga. App. 824, 189 S.E.2d 120, 1972 Ga. App. LEXIS 1483 (1972) (decided under Ga. L. 1968, p. 448). Due process was not violated by the failure to return the defendant’s plastic license following a license suspension hearing which was resolved in the defendant’s favor since the rationale for confiscation of the license in the first place was a pending charge under O.C.G.A. § 40-6-391. Wright v.