DUI Law: Implied Consent Rights
State v. Stelzenmuller
A07A0767 (criminal case)
May 10, 2007
Smith, Presiding Judge.
07 FCDR 1520 (05/25/07)

In Stelzenmuller, the Georgia Court of Appeals affirmed the Trial Court's granting of motion to suppress with regard to the State's failure to prove the reading of the implied consent rights after arrest.  What happened was the Defendant had alleged that Implied Consent was not read prior to arrest as required by Hough v. State, and the Court chose to disbelieve the Officer.  The Officer testified that he told the Defendant she could go home but she had to go to the DeKalb County Jail first.   The Trial Court found that this statement would cause an ordinary reasonable Defendant that this was not an arrest but only a temporary detention.  This is an interesting case because (a) it reaffirms that implied consent must be made prior to arrest and (b) suggests that ambiguous statements by the officer like "you can go home after you go to the jail," "if you blow under the legal limit I won't charge you with DUI," "if you blow under the legal limit you are good to go," and "taking the State Administered Breath test is no a lose/lose situation, you might win if you take the State Breath Test and blow under the legal limit" can result in the detention being deemed temporary in nature and less than the custodial detention required by the Implied consent statute.  

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