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Refusal Of Breath Test In Georgia: Rescinding Refusal Under Implied Consent

A breath test is a search for the purposes of the 4th Amendment. Consent can be a valid exception to the warrant requirement of the 4th Amendment if it is freely and voluntarily given. Unfortunately, for far too long, DUI lawyers in Georgia have simply analyzed the admissibility of breath, blood or urine tests under the implied consent law. The 4th Amendment, however, has important implications on the admissibility of such test. The case below addresses coercion under the implied consent, and whether the officer acted reasonably in talking the defendant into submitting to testing:


After a bench trial, at which the appellant stipulated to using evidence adduced at a motion to suppress hearing as evidence for trial, the trial court found Jennifer Humphries guilty of DUI per se and failure to maintain a lane. On appeal, she contends the trial court erred in finding that the officer used “fair and reasonable” means of obtaining her consent to take a breathalyzer test. Specifically, she argues that after she initially refused to submit to a breath test, the officer threatened that her refusal would result in a forcible blood draw and longer confinement while a search warrant was obtained to draw her blood. For the following reasons, we affirm.

Humphries v. State, 327 Ga. App. 542, 542, 759 S.E.2d 611, 612 (2014)


If a person has declined to submit to a state-administered test, officers are allowed to use “fair and reasonable” methods of persuasion to get them to rescind the refusal. Howell v. State, 266 Ga.App. 480, 485, 597 S.E.2d 546 (2004). See State v. Highsmith, 190 Ga.App. 838, 839, 380 S.E.2d 272 (1989) (a suspect may revoke his implied consent, although “the court must evaluate the officer’s actions to determine if the officer acted reasonably in the situation and whether the procedure was applied in a fair manner”). If it is determined that the officer acted in a manner to coerce consent, then the evidence obtained must be suppressed. See State v. Rowell, 299 Ga.App. at 239–240, 682 S.E.2d 343 (2009) (affirming trial court’s finding that an officer’s actions were not fair or reasonable when the defendant testified that she felt coerced when the officer told her if she blew under the legal limit, he would let her go home to her son).

Humphries contends that, although she later consented to the Intoxilyzer test, some of the officer’s statements before she changed her mind rose to the level of coercion, specifically the statements that the test was not optional and that it would take longer to be processed out of jail if she did not submit to the test. We do not agree.

Despite Humphries’ contentions, none of the officer’s statements to Humphries were deceptively misleading or inaccurate. Although he said it would take longer to be processed and released as a result of her refusal, this information was not misleading or deceptive information, as he explained to Humphries that the process of acquiring a warrant would mean additional time before she could be processed out of custody. Further, regarding the officer’s statement that he would obtain a warrant to retrieve Humphries blood, a statement that police would obtain a warrant if defendant refused to consent to search, being true, “does not amount to such duress or coercion as would invalidate the subsequent search.” (Punctuation omitted.) Farley v. State, 195 Ga.App. 721, 722, 394 S.E.2d 585 (1990); compare Wallace v. State, 325 Ga.App. 142, 144–145, 751 S.E.2d 887 (2013) (when an officer incorrectly informs a defendant that his refusal to submit a breath test could not be used against him, a motion to suppress should be granted). Moreover, although Humphries contends that by saying consent was “not optional,” the officer was giving her any choice but to take the test, upon our review of the video of the stop, it appears that the officer’s statement was that she either had to submit or not submit and that to not do one or the other was not optional. However, the officer repeatedly told Humphries that the decision was up to her.

Under the circumstances, we conclude that the trial court had a substantial basis for making its finding that the officer’s statements did not render Humphries incapable of making an informed decision about whether to submit to the breath test. The traffic stop video does not clearly suggest that the officer’s statements were made to coerce Humphries into consenting. The officer continued to alert Humphries that it was her decision to make, and that the booking department at the jail would provide her with further information regarding future processes.

Thus, the trial court did not err in denying Humphries’ motion to suppress, and we find the evidence sufficient to sustain her convictions for DUI per se and failure to maintain a lane. See Page, 296 Ga.App. at 434(1)(b), 674 S.E.2d 654 (2009) (officer’s actions not unreasonable or coercive when Page initially refused consent to testing when asked at the scene of the traffic stop, but later rescinded her refusal and consented to the test.)

Humphries v. State, 327 Ga. App. 542, 544-45, 759 S.E.2d 611, 613-14 (2014)

About the Author

Ben Sessions, Attorney at Sessions Law Group
Ben Sessions

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