Consent to Testing in Georgia DUI Cases

By Ben Sessions on August 16th, 2015 in DUI / DWI

One of the major issues in Georgia DUI cases that has been more developed during 2015 is the requirement that the State prove that the defendant voluntarily submitted to the required chemical test in order for the State to be able to use the test results at trial. This is a marked change in the burden of the State. Prior to the Williams decision, the State could meet its burden of establishing the admissibility of the state-administered chemical test simply by showing that the Implied Consent scheme had been adhered to in the administration of the test.

During the course of litigation post-Williams, some theories have been suggested as to how consent should be analyzed. There is very little new in these theories. Consent is an issue that has been litigated throughly both in the DUI context and in our criminal law more generally. Unfortunately, many people are attempting to re-create the wheel under Williams and many of their suggestions have already been litigated. Take, for example, the theory that consent should be analyzed as a waiver of Fourth Amendment rights like waiver of the right to counsel under the Fifth and Sixth Amendments.

DOES OUR “WAIVER” CASELAW HAVE ANY BEARING ON THE ANALYSIS OF ACTUAL CONSENT TO TESTING IN GEORGIA DUI CASES?

The answer to this question is: very, very little. The analogy seems to fit until you spend some time actually reading the seminal case on the analysis of consent to searches under the Fourth Amendment:

There is a vast difference between those rights that protect a fair criminal trial and the rights guaranteed under the FourthAmendment. Nothing, either in the purposes behind requiring a ‘knowing’ and ‘intelligent’ waiver of trial rights, or in the practical application of such a requirement suggests that it ought to be extended to the constitutional guarantee against unreasonable searches and seizures.

A strict standard of waiver has been applied to those rights guaranteed to a criminal defendant to insure that he will be accorded the greatest possible opportunity to utilize every facet of the constitutional model of a fair criminal trial. Any trial conducted in derogation of that model leaves open the possibility that the trial reached an unfair result precisely because all the protections specified in the Constitution were not provided. A prime example is the right to counsel. For without that right, a wholly innocent accused faces the real and substantial danger that simply because of his lack of legal expertise he may be convicted. As Mr. Justice Harlan once wrote: ‘The sound reason why (the right to counsel) is so freely extended for a criminal trial is the severe injustice risked by confronting an untrained defendant with a range of technical points of law, evidence, and tactics familiar to the prosecutor but not to *242 himself.’ Miranda v. Arizona, supra, 384 U.S., at 514, 86 S.Ct., at 1649 (dissenting opinion). The Constitution requires that every effort be made to see to it that a defendant in a criminal case has not unknowingly relinquished the basic protections that the Framers thought indispensable to a fair trial.

The protections of the Fourth Amendment are of a wholly different order, and have nothing whatever to do with promoting the fair ascertainment of truth at a criminal trial. Rather, as Mr. Justice Frankfurter’s opinion for the Court put it in Wolf v. Colorado, 338 U.S. 25, 27, 69 S.Ct. 1359, 1361, 93 L.Ed. 1782, the Fourth Amendment protects the ‘security of one’s privacy against arbitrary intrusion by the police . . ..’ In declining to apply the exclusionary rule of Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081, to convictions that had become final before rendition of that decision, the Court emphasized that ‘there is no likelihood of unreliability or coercion present in a search-and-seizure case,’ Linkletter v. Walker, 381 U.S. 618, 638, 85 S.Ct. 1731, 1742, 14 L.Ed.2d 601. In Linkletter, the Court indicated that those cases that had been given retroactive effect went to ‘the fairness of the trial—the very integrity of the fact-finding process. Here . . . the fairness of the trial is not under attack.’ Id., at 639, 85 S.Ct., at 1743. The Fourth Amendment ‘is not an adjunct to the ascertainment of truth.’ The guarantees of the **2056 Fourth Amendment stand ‘as a protection of quite different constitutional values—values reflecting the concern of our society for the right of each individual to be let alone. To recognize this is no more than to accord those values undiluted respect.’ Tehan v. United States ex rel. Shott, 382 U.S. 406, 416, 86 S.Ct. 459, 465, 15 L.Ed.2d 453.

Schneckloth v. Bustamonte, 412 U.S. 218, 242, 93 S. Ct. 2041, 2055-56, 36 L. Ed. 2d 854 (1973).

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