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A Criminal Defense Law Firm

Intern’s First-Hand Experience Regarding The Implied Consent Notice to Searches

Field-Sobriety Step TestA few days ago, I had the privilege of watching a motion for a DUI case. The reason I watched this particular motion is because attorneys are now filing motions involving the Implied-Consent Notice. The defense used this law to help construct their argument.

In my previous post, I discussed the Implied-Consent Notice, which states: Implied consent notice for suspects age 21 or over: “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 (designate which tests) under the implied consent law?” The full law can be seen here: http://law.justia.com/codes/georgia/2010/title-40/chapter-5/article-3/40-5-67-1

Just because you were asked to take a field-sobriety test and/or a breath test and you said, “yes” to taking the test(s) doesn’t mean that you voluntarily consented to the test(s). In these situations it is very important that you have an experienced attorney to argue the topic of voluntary consent if applicable.

The alleged act took place in the beginning of January between midnight and 1:30 in the morning. It was raining heavily outside and the temperature was cold. The defendant was driving home from a sports grille and the police noticed him and another car driving on the wrong side of the road. The officers approached the second car and pulled him over.

The defendant was questioned in the driveway of a residence and was asked where he was coming from, where he lived and whether or not he had alcohol to drink. The officer who pulled over the man stated that he did not detect an odor of alcohol, though his superior did. His superior also testified that his speech appeared to be “elongated and he overthought what he was going to say” Eventually, the officer asked the suspect if he would take a field sobriety test. The suspect agreed and proceeded to take a few tests.

He was first given a Horizontal Gaze Nystagmus (a test that looks for impairment in the suspect’s eyes), which he had no issues with. Following, he was given a Walk-and-Turn test, a One-Leg-Stand test as well as an Alphabet test. He had issues with each but none of the issues indicated obvious impairment. The suspect was then given a Breathalyzer test and he blew positive for alcohol intoxication.

After the positive reading the man was placed under arrest. He was then read the Implied Consent Notice. The suspect agreed and was taken to the station to be evaluated.

The defense brought up a few arguments, including the topic of voluntary consent. The attorney emphasized the fact that the weather was awful. It was pouring rain as well as a very cold temperature. His client was soaked and beyond cold, and the Implied Consent Notice was read in the rain, therefore he was unable to give voluntary consent due to his discomfort. He also mentioned that due to the heavy rain outside, it would be difficult to detect an odor of alcohol as well as having proper visibility.

The defense pointed out that there was nothing out of the ordinary about this traffic stop, his client was compliant and kept his composure. He also mentions that his client had no previous criminal record.

The defense also argued that the notice is misleading. The attorney stated that “consent” is not described very well in the notice. Another great point brought up is that the defendant was handcuffed and surrounded by police officers during the reading of the Implied Consent Notice. He states that his client was in a fragile situation and was intimidated, therefore being unable to consent. It was argued that he merely submitted to authority.

As you can see, the defense brought up many valid points throughout this motion. Due to the circumstances, his client was not able to consent freely and voluntarily to the tests. Scott and Michael have filed many motions regarding this same issue. During situations like these, it is very important to have an experienced attorney representing you. There are many questions such as the ones above that need to be addressed in court.

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