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A Criminal Defense Law Firm

Recent DUI Case Creates New Defense

Georgia Implied Consent NoticeAre you or have you ever been under the impression that you are required to submit to a blood or breath test to determine alcohol intoxication? This is a very common misconception and has been the subject of debate recently. The law is also considered deceptive and unclear to some. In the recent case of Williams vs. State of Georgia, this issue brought up many questions whether the law is constitutional.

In September of 2012, a man appeared to be driving erratically and swayed into the oncoming lane several times. The Gwinnett Police were called and the individual was pulled over. The officer claims he appeared to be confused, his speech was slow, slurred and he also mumbled when he spoke. The officer asked the man to exit his car and he did so slowly and unsteadily. When asked about the medications he was taking, the suspect stated that he had two prescriptions for pain medication. He was asked to perform a field sobriety test and he agreed.

His performance was less than perfect on most of the tests, but he did not indicate impairment. This person appeared to have balance issues, but he stated that it was due to an equilibrium problem. The officer placed the man under arrest and immediately read him the implied consent notice. The implied consent notice states “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 0.02 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 (designate which tests) under the implied consent law?” After reading the consent, the officer told him it was a yes or no question and he responded “yes”. The officer then had the individual transported to have his blood drawn.

The defendant later filed a motion to suppress the results of the blood test. The trial court denied the request. To read the whole story, click the link below:
http://law.justia.com/cases/georgia/supreme-court/2015/s14a1625.html

The fourth amendment prohibits unreasonable searches and seizures. A blood test is a search; therefore, the court must prove the reasonableness of the search. There are two exceptions to this: (1) If the suspect consents to the search (the consent must be freely and voluntarily given) or (2) In the event of an emergency. It is up to the state to prove whether the consent was freely and voluntarily given and that the suspect was not “giving in” to the display of authority. An experienced attorney will exploit these conditions and make sure that those conditions are followed.

There are a few questionable ways in which the law is phrased, which may come off as deceptive. After the appellant was arrested, he was told that he is required to submit to testing. If he refuses, his driver’s license will be suspended for a minimum of one year and his refusal will be used against him in trial. However, he is not informed that a test showing impairment will be used against him in trial as well.

The law also states that a positive test for impairment may be used to suspend your license for a year. This might confuse the suspect into believing that if they have a positive result, they may not be as likely to lose their driver’s license. Lastly, the law does not let the suspect know that the chemical test of impairment must be consented to freely and voluntarily, the average person will not even know that this is a requirement.

The appellant was in handcuffs at the time and had been informed that he had been arrested. This adds to the intimidation factor and may affect proper consent. The appellant was also not read his Miranda rights.

So in conclusion, if you are instructed to submit to a blood, breath, or urine test under Georgia’s implied-consent law and you agree, this DOES NOT prove that you voluntarily consented to the test. It is up to the state to prove that your consent was freely and voluntarily given. A seasoned attorney will use these rules in their defense and raise the question whether you properly consented to the test.

This is a recent case, but DUI attorneys are already filing motions trying to use this case to their client’s benefit. The Semrau law firm has filed several such motions and I will update the blog as those motions are heard.

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