DUI Blood Draws Pursuant to the Georgia Implied Consent Warning

By Ben Sessions on December 3rd, 2014 in Uncategorized

ARE DUI BLOOD DRAWS PURSUANT TO THE GEORGIA IMPLIED CONSENT WARNING CONSTITUTIONAL AFTER MCNEELY?

The recent United States Supreme Court case Missouri v. McNeely declared that a warrantless blood draw in a DUI case was unconstitutional where there were no exigent circumstances to justify the draw.  The oral argument in this case clearly foreshadowed the Court’s ruling, and since I heard the ruling, I have been trying to challenge warrantless blood draws, pursuant to Implied Consent, in most of my applicable cases. Below is a portion of a recent brief that addresses what I believe this argument will turn upon in Georgia DUI cases:

1. “Consent” for Purposes of Our Implied Consent Law Is Not “Consent” for the Purposes of the Fourth Amendment of the United States Constitution.

Prior to the drawing of the Defendant’s blood in this case, the Defendant’s was read the Georgia Implied Consent Notice for suspects age 21 or over.  The notice read to the Defendant stated:

“Georgia law requires you to submit to state administered chemical tests of your blood, breath, urine, or other bodily substances for the purpose of determining if you are under the influence of alcohol or drugs. If you refuse this testing, your Georgia driver’s license or privilege to drive on the highways of this state will be suspended for a minimum period of one year. Your refusal to submit to the required testing may be offered into evidence against you at trial. If you submit to testing and the results indicate an alcohol concentration of 0.08 grams or more, your Georgia driver’s license or privilege to drive on the highways of this state may be suspended for a minimum period of one year. After first submitting to the required state tests, you are entitled to additional chemical tests of your blood, breath, urine, or other bodily substances at your own expense and from qualified personnel of your own choosing. Will you submit to the state administered chemical tests of your blood under the implied consent law?”

Following the reading of the Implied Consent Notice, the Defendant agreed to submit to the state-administered blood test.

As an “incentive” to submit to the state-administered chemical test, the Implied Consent Notice advised the Defendant that:

1. “If you refuse this testing, your Georgia driver’s license or privilege to drive on the highways of this state will be suspended for a minimum period of one year.” – In contrast to the provision of the Implied Consent Notice that addresses the consequences of submitting to the state-administered chemical and the results being over .08 grams, this refusal provision states that the Defendant’s driver’s license or privilege to drive in Georgia will be suspended for a minimum period of one year.
2. “Your refusal to submit to the required testing may be offered into evidence against you at trial.” – The Defendant was advised that a refusal of the state-administered chemical test could be used against him and is, therefore, not protected as post-arrest interrogation response for the purposes of Miranda.
3. “If you submit to testing and the results indicate an alcohol concentration of 0.08 grams or more, your Georgia driver’s license or privilege to drive on the highways of this state may be suspended for a minimum period of one year.” – The Implied Consent Notice provides the Defendant with notification of the possible admissibility of a refusal at trial, but the notice does not inform the Defendant of the admissibility of the results of the state-administered chemical test results.
4. The Implied Consent Notice was read after the Defendant was informed that he was being charged with DUI and Reckless Driving.  Any attempt to secure consent for the purposes of the Fourth Amendment of the United States Constitution and Art. I, Sec. I, Par. XIII of the Georgia Constitution after the Defendant was informed that he was being charged with DUI was a custodial interrogation and was, therefore, subject to Miranda.

The terms of the Implied Consent Notice provide a DUI suspect with strong incentives to comply with the request for a state-administered test.  However, consent garnered pursuant to the Implied Consent Warning is not valid consent for the purposes of the Fourth Amendment of the United States Constitution or Art. I, Sec. I, Par. XIII of the Georgia Constitution.

[A]s a general rule, the state, having power to deny a privilege altogether, may grant it upon such conditions as it sees fit to impose.  But the power of the state in that respect is not unlimited, and one of the limitations is that it may not impose conditions which require the relinquishment of constitutional rights.  If the state may compel the surrender of one constitutional right as a condition in its favor, it may, in like manner, compel a surrender of all.  It is inconceivable that guaranties embedded in the Constitution of the United States may thus be manipulated out of existence.

Frost v. Railroad Commission, 271 U.S. 583, 593-94 (1926).

Under Frost, use of “consent” for the purposes of the Georgia Implied Consent Notice as “consent” for the purposes of the Fourth Amendment of the United States Constitution and Art. I, Sec. I, Par. XIII of the Georgia Constitution is unconstitutional because this “consent” is extracted under the threat of a mandatory license suspension and use of a refusal against the suspect at trial.  Further, the State’s attempt to secure a Fourth Amendment waiver or consent to search after the Defendant was informed that he was being charged with DUI constituted a custodial interrogation and, thus, was subject to Miranda.

If you need a serious solution to a DUI charge in Georgia, contact a Board-Certified Georgia DUI Lawyer today.

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