Imagine a hypothetical, a driver is arrested for DUI in Georgia, Georgia Implied Consent is read and the Officer designates a breath test.  When the Intoxilyzer 9000 is set up, the driver states that he will not take a breath test but that he will only take a blood test.  No other rights are read or legal rights discussed. Most importantly the Georgi Implied Consent rights are not reread and blood is never designated in the context of Implied Consent rights by the Officer as the designated state test. O.C.G.A. 40-5-67.1 (b) plainly and expressly states that “At the time a chemical test or tests are requested, the arresting officer shall select and read to the person the appropriate implied consent.”  Further, Georgia Implied Consent right requires the Officer to read to the client, “Will you submit the ([Officer must designate test or tests, I.e., blood, breath, urine or other bodily substance]) under the Implied Consent Law?”  The Officer never read implied consent and designated blood.

In Ladow v. State, 256 Ga. App. 726, 569 S.E.2d 572 (2002), the defendant interrupted the officer after he had read the first sentence of the Implied Consent warning. The defendant thereupon expressed her familiarity with the content of the warning and said, “I want a blood test.” Without directly responding to Defendant’s request for a blood test, the officer read the remainder of the notice and then obtained the defendant’s consent to submit to a state-administered blood test. Ladow did not again ask for an independent blood test, and at no point was once administered. The state in Ladow argued that the officer reasonably construed the defendant’s statement as referring to a certain type of state-administered test. The Court of Appeals rejected that argument, reasoning as follows:

“Each … notice [outlined in OCGA § 40-5-67.1] ends with the question, ‘Will you submit to the state-administered chemical tests of your ((officer) designates which tests) under the implied consent law?’ None, however, asks the accused whether [he] wants an additional, independent chemical test. And none specifies to the accused any requirements of requesting that test—linguistically, temporally, or otherwise. We do not believe that the legislature intended the notices to set up pitfalls for an accused who desire to have an additional, independent chemical test administered. We therefore cannot place upon an accused the burden of uttering words unspecified, yet more particularized than those uttered here: “I want a blood test.'[emphasis added]”

Again in Johnson v. State, 261 Ga. App. 633, 583 S.E.2d 489 (2003),  in response to the officer’s implied consent warning, Johnson expressed his preference to take a urine test by stating “I’ll take a urine test” rather than the state-administered breath test that was designated by the Officer. Because these statements reasonably could be construed to be an expression of a desire for an independent urine test, the Court of Appeals concluded that in Johnson, as in Ladow, the trial court erred in admitting the results of the state-administered test.

In Wright v. State, 789 SE2d 424 (2016), the Court of Appeals articulated once and for all the standard for what amounts to a request for an additional independent test and found based on the Ladow Court decision that:

“an accused’s right to have an additional, independent chemical test or tests administered is invoked by some statement that reasonably could be construed, in light of the circumstances, to be an expression of a desire for such test.“

Therefore, a Driver’s statement that “I will only take a blood test” at the police station could reasonably be construed as a request for an additional independent test of his choosing and is, therefore, a legal request for an independent test which must be reasonably accommodated. The only choice a Driver has under the implied consent statute is for an additional independent test. He is not legally able to choose which state-administered test he will submit as this test must by law be designated by the Officer. Therefore, if a Driver says I want a blood test in response to or during implied consent, then he must be given a state-administered blood test and an independent blood test for the state test to be legal.

-Author: George Creal

Photo Credit: Death to Stock Photography (No Endorsement) 

DUI Attorney Atlanta | Atlanta dui lawyers