MISLEADING INFORMATION ABOUT THE DUI IMPLIED CONSENT NOTICE IN GEORGIA: CAN THE STATE STILL USE THE TEST?
Posted by Ben Sessions | | DUI / DWI
Misleading information about the DUI implied consent notice should be discussed in every case by every DUI attorney in the State of Georgia. Whether the case involves a refusal or a blood, breath, or urine test, a lawyer would be doing a criminal defendant a real disservice if misleading information about the DUI implied consent was not explored in detail. Misleading information regarding the implied consent notice remains the most viable means of excluding the refusal of or results of a state blood, breath, or urine test.
First, your lawyer must understand the issue and develop it through discussions with you, reviewing the video of the DUI stop, reviewing the incident report, and speaking with the arresting officer. Then, your DUI lawyer must file a motion in limine or motion to suppress the refusal of or results of the state blood, breath, or urine test.
It is critical to recognize that any misinformation after the reading of implied consent but prior to the defendant’s response may provide the basis for suppression of the refusal or the test results in a Georgia DUI case.
In Deckard, 9 we reversed the denial of a motion in limine where the officer informed the suspect that his failure to submit to a state-administered breath test would result in the suspension of his driver’s license, even though the suspect had a Tennessee driver’s license 10. We held that because the consent was based in part on misleading information, the consent implied by law was not voluntary and the test results were inadmissible.
Similarly, in Rojas v. State,12 we agreed with the defendant that an officer’s statement that her Florida driver’s license would be suspended due to her refusal to submit to state-administered testing was inaccurate and misleading. We held, though, that Deckard did not require suppression of the evidence because the officer’s statement to Rojas was harmless: it was made after Rojas refused to take the state-administered test, so the statement did not coerce Rojas to consent to the state-administered test.
Although Rojas was decided on other grounds, namely that the misstatement was harmless under the circumstances, the Court suggested that Deckard would have controlled had Rojas been given misinformation about the consequences of refusal to submit to testing, and then consented to testing.
In State v. Terry, this Court affirmed the grant of a motion in limine because a suspect, having been properly informed of her implied consent rights, was subsequently misinformed that she would have to “bond out” of jail before she could obtain an independent *626 test.16 The officer and breath test machine operator gave the suspect misleading responses to her questions regarding the notice. We held that the misleading information was relevant to the suspect’s decision whether to agree to the state-administered **830 test.17 In Terry, we were not persuaded by the state’s argument that it is acceptable for an officer to give a suspect misleading responses regarding the warning so long as the notice initially given was accurate, and provided the officer did not intend to mislead the suspect.18 The statements made to the suspect after the proper notice was read were misleading and could have affected her decision, regardless of the officer’s intent.
In the instant case, after the officer read the appropriate implied consent notice to Peirce, the officer told him that if he did not submit to the breath test, his driver’s license would be suspended. The officer was not authorized to implement such a penalty for refusal, since Peirce was driving with an out-of-state license.20 Peirce’s consent to submit to the state-administered breath test was based, at least in part, on misleading information concerning a penalty for refusal. The error was not harmless because Peirce submitted to the breath test after he was misinformed about the consequences of refusing.21 There is a substantial basis for the trial court’s ruling.
We are not convinced by the state’s argument that Deckard, Coleman and Renfroe are distinguishable because Peirce was a resident of Georgia, while the defendants in those cases were not.
State v. Peirce, 257 Ga. App. 623, 625-27, 571 S.E.2d 826, 829-30 (2002).
If you are looking to challenge the admissibility of a breath test in a Georgia DUI case based upon misleading information, do not overlook our recent post on the potential impact of the Olevik decision.
If you have questions regarding a Georgia DUI case, contact The Sessions Law Firm today.