Georgia DUI Cases of Note

  

NAGATA V. STATE - A12A1957: Discrepancy in the Implied Consent Warning

Wednesday, January 16, 2013

Nagata v. State (2013) - Georgia Court of Appeals

On December 12, 2009, Wataru Nagata was pulled over for failure to maintain lane. When the officer made contact with Nagata he noticed the smell of alcohol and conducted a initial DUI investigation, which led to Nagata's arrest. The officer then read Nagata his implied consent notice from a card. Nagata consented to a state-administered breath test and was convicted of DUI at trial, but appealed his conviction on the grounds that he was not read his implied consent notice as specified in OCGA § 40-5-67.1 (b) (2). The statute states that the last sentence should read: “Will you submit to the state administered chemical tests of your (designate which tests) under the implied consent law?" In Nagata's case, the officer did not “designate which tests,” but stated: “Will you submit to state-administered chemical tests of your blood, breath, urine, or other body substances under your implied consent law?” Citing Collins v. State, 290 Ga. App. (2008), Colon v. State, 256 Ga. App. (2002), and State v. Chun, 265 Ga. App. (2004), the Court finds no basis for reversal in Nagata's appeal.

The crux of Collins, Colon, and Chun is that if it can't be proven that a discrepancy in how the implied consent warning was read changed the meaning of the warning, then such a discrepancy isn't grounds for suppressing state-administered test results. Admittedly, in Nagata's case the officer's mistake in reading the implied consent warning was very minor. But more importantly, even without a discrepancy in wording the implied consent warning is very misleading. For one, the warning states that if you refuse a state-administered test, your driver's license will be suspended for one year, which is not necessarily true [LINK]. Later, it states that if you consent to a test and have a BAC of .08 or higher, your license may be suspended for one year, but no further explanation is provided. After hearing the implied consent warning, many people arrested for suspicion of DUI think that if they refuse testing they they will automatically lose their driver's license for one year. The arresting officer in Nagata may not have improperly read the implied consent warning, but considering that the meaning is not really “substantively accurate so as to permit the driver to make informed decision about whether to consent to testing,” what does it matter if the warning is read correctly?



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