MOTIONS TO EXCLUDE BREATH TEST RESULTS BASED ON COERCION OR INVOLUNTARINESS
Most Georgia DUI cases, particularly those cases in which there is a blood or breath test for alcohol, are won or lost at the pre-trial motion hearing. Most of our DUI cases, particularly those involving DUI alcohol per se charges, are won or lost at the pre-trial motions hearing addressing the admissibility of the test results in the DUI trial. Nevertheless, many lawyers spend very little time preparing investigating or preparing argument in support of motions hearings. Most assume that judges know the law and will recognize any issues at the hearing. This assumption could not be further from the truth.
Below is a sample brief that I submitted recently on a case in which argued that the breath test results should be excluded because of the unfair circumstances that surrounded the submission of the test.
BRIEF IN SUPPORT OF DEFENDANT'S MOTION IN LIMINE TO EXCLUDE THE RESULTS OF THE STATE-ADMINISTERED CHEMICAL TEST
Comes Now, the Defendant in the above-styled case, by and through the undersigned counsel of record, and respectfully submits this brief in support of her motion in limine to exclude the results of the state-administered chemical test. In furtherance of this motion, the Defendant respectfully shows this Honorable Court the following:
After being placed under arrest, Ms. XXXXXXXXX was read the implied consent warning 6 times. Ms. XXXXXXXXX was read the implied consent notice 4 times at the scene of her arrest, and she was read the implied consent notice 2 times at the jail. To each of the 6 readings of the implied consent notice, Ms. XXXXXXXXX did not respond with an answer as to whether she would submit to the request for her submission to a breath test. Sgt. DUI testified that Ms. XXXXXXXXX never verbally consented to the breath test request.
At the scene of her arrest, during one reading, Sgt. DUI read the implied consent notice line-by-line and asked Ms. XXXXXXXXX if she understood each line. To each line, Ms. XXXXXXXXX replied that she did understand the sentence. When Sgt. DUI read the final line and asked Ms. XXXXXXXXX if she would consent to the state-administered breath test, Ms. XXXXXXXXX did not respond.
After Ms. XXXXXXXXX was transported to the jail by Sgt. DUI, she was placed in front of the Intoxilyzer 5000, and Sgt. DUI proceeded to read the implied consent notice to her 2 times. When Ms. XXXXXXXXX did not provide a verbal response, Sgt. DUI told Ms. XXXXXXXXX that this was her last opportunity to provide a sample. Sgt. DUI implemented an artificial deadline for Ms. XXXXXXXXX's decision as to whether to submit to the breath test. When Sgt. DUI told Ms. XXXXXXXXX that it was her last opportunity to provide a breath sample, he testified that he did not remind her that the contents of the implied consent warning would apply to her submission of a breath sample.
The results of the Defendant's state-administered breath test should be excluded from evidence in the trial of this case because the circumstances leading to the Defendant's submission to the state-administered breath were not fair and reasonable.
O.C.G.A. 40-5-67.1(d) states:
If a person under arrest or a person who was involved in any traffic accident resulting in serious injuries or fatalities refuses, upon the request of a law enforcement officer, to submit to a chemical test designated by the law enforcement officer as provided in subsection (a) of this Code section, no test shall be given….
Georgia law requires that a defendant consent to a designated chemical test before such test may be performed:
The word “ ‘[s]hall' is generally construed as a word of command.” Mead v. Sheffield, 278 Ga. 268, 269, 601 S.E.2d 99 (2004). The import of the language is mandatory. O'Donnell v. Durham, 275 Ga. 860, 861(3), 573 S.E.2d 23 (2002). Therefore, the statute plainly requires that if an individual does not consent to the designated chemical test, then no test is to be administered. This precludes any discretion on the part of the officer to attempt to obtain such testing.
Sgt. DUI never recognized Ms. XXXXXXXXX's refusal to answer his request for consent to the state-administered breath test as a refusal. Refusal to respond to the implied consent warning, or silence in response to the warning is deemed a refusal under Georgia law.
In evaluating whether consent to a state-administered chemical test has been validly obtained, Georgia courts have evaluated whether the circumstances under which the state-administered breath test was administered are fair and reasonable.
Sgt. DUI testified that Ms. XXXXXXXXX never verbally consented to any of his 6 requests for a breath test. Under Adams and Miles, supra, Ms. XXXXXXXXX's failure to respond to these 6 requests should have been considered a refusal of the state-administered breath test. Nonetheless, Sgt. DUI continued to read and re-read the implied consent warning to Ms. XXXXXXXXX.
After setting up the Intoxilyzer 5000, Sgt. DUI told Ms. XXXXXXXXX that this was her last opportunity to take the breath test. This deadline was determined artificially by Sgt. DUI, and it is in direct contradiction to Department of Public Safety v. Seay, 206 Ga. App. 71, 424 S.E.2d 301 (1992), which provides for the right of rescission of a refusal by a DUI defendant.
Finally, when Ms. XXXXXXXXX actually submitted to a breath test, it was not in response to a reading of the implied consent warning. Ms. XXXXXXXXX submitted a breath sample in response to Sgt. DUI's statement that it was her last opportunity to obtain a test. Sgt. DUI did not remind Ms. XXXXXXXXX that the rules with regard to the use of the test against her and the license suspension consequences provided in the implied consent warning would apply to the test.
In State v. Adams,
the defendant was arrested for DUI and read the implied consent warning. After the reading of the implied consent warning, the defendant stated that he did not know how to respond.
The officer in Adams indicated that he could not indicate to the defendant whether he should take the test or not. The officer in Adams started to re-read the implied consent warning but the defendant declined that reading. At the jail, “[the officer] offered [the defendant] a chance to take the test, and [the defendant] complied.”
The Court of Appeals affirmed the trial court's order excluding the breath test results in Adams.
The instant case is a stronger case for exclusion of the breath test result than Adams in that (1) Ms. XXXXXXXXX did not ever verbally consent to the breath test, (2) the officer did not recognize that a refusal to respond to a breath test request is deemed to be a refusal, which is particularly significant in Ms. XXXXXXXXX's case where she indicated that she did understand the implied consent warning, (3) Ms. XXXXXXXXX finally submitted to the breath test in response to Sgt. DUI's statement that it was her last chance to take the test, and(4) Sgt. DUI artificially created the impetus to her submission to the test. As in Adams, the circumstances under which the state-administered breath test was administered in this case cannot be deemed fair and reasonable. Accordingly, the Defendant respectfully asks that this Honorable Court exclude from the trial of this case all evidence and testimony regarding the state-administered breath test results.
Respectfully Submitted, this ___ day of November, 2012.
1 State v. Collier, 279 Ga. 316, 317 (2005).
2 State v. Adams, 270 Ga. App. 878, 609 S.E.2d 378, 380 (2004), citing, Miles v. State, 236 Ga. App. 632, 633, 513 S.E.2d 39 (1999)(where defendant fails to respond to implied consent request, silence is tantamount to refusal).
3 Howell v. State, 266 Ga. App. 480, 597 S.E.2d 546 (2004); State v. Adams, 270 Ga. App. 878, 880 (2004).
4 270 Ga. App. 878, 609 S.E.2d 378 (2004).
5 This is a significant fact in the case at bar because Ms. XXXXXXXXX indicates to the Officer that she does understand the implied consent warning, but she remains silent. In Adams, there were clearly facts that would have supported an officer's persistence in further efforts to clarify the defendant's intent with regard to the test. Such is not the case here. Ms. XXXXXXXXX was simply maintaining her silence and refusing the test through 6 requests, and Sgt. DUI never recognized her refusal.
6 Id. at 380.
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