Reversing a prior ruling from the Georgia Court of Appeals and excluding the Breath test from the Carrollton Trial Cout in this Georgia Per Se DUI case, this Court held that the Caroll County police officer made a material omission in reading implied consent, after he was interrupted by Saul, when he failed to tell the Defendant that that his refusal to submit to testing may be offered into evidence against him. On one hand, the Court noted that O.C.G.A. 40-5-67.1 does not require an exact reading of implied consent. On the other hand, the crux of the issue is whether, “the implied consent notice that was actually given the driver was ‘substantively accurate so as to permit the driver to make an informed decision whether to consent to testing.’” State v. Barnard, 740 S.E.2d 837 (2013). The Court likened an error of omission to an “error of commission,” meaning that inaccuracy contemplates not only misstatements but omissions as well. Nothing that, “the General Assembly has determined that drivers should be made aware of the potentially most serious consequence of refusal of testing,” the Court held that this particular omission rendered the reading so inaccurate that the driver was unable to make an informed decision.
As an aside, the State tried to use the United States Supreme Court case of South Dakota v. Neville as persuasive authority that due process claims are not implicated when an officer fails to warn a driver that a refusal could be used as evidence against him or her. However, the Supreme Court of Georgia delved past a due process inquiry, maintaining its holding within the parameters of established Georgia case law such as Barnard and McHugh v. State, 285 Ga. App. 131 (2007).
post by: Eric Bernstein