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Davis v State – Submitting to Authority is not Actually Consent

Davis v. State, A15A0324-Vac/Rem-June12 2015.  Cameron Davis was convicted after a bench trial of DUI less safe and DUI per se and reckless driving.  Davis contended that his consent to the chemical test of his blood was only based upon implied consent which is not equivalent to the actual consent required by the 4th Amendment of the U.S. Constitution.  Davis was stopped by an Athens-Clarke County Police officer for a traffic violation.  The Officer noted bloodshot eyes and slurred speech and asked for a portable breath test. Davis refused and said that he would take a blood test.  The Officer explained that Davis was not under arrest and requested field sobriety evaluations such as the HGN, one leg stand, and walk and turn evaluation. Davis declined. The Officer arrested Davis for DUI less safe and read Davis Georgia Implied Consent rights asking for a state-administered test of his breath. Davis requests a blood test. The Officer then re-read Georgia Implied Consent rights and designated a blood test to which Davis agreed to submit. The Blood Test came back over the per se limit for blood alcohol in Georgia.

The Court of Appeals vacated and remanded the conviction for DUI and remanded the case to the trial court to consider under the totality of the circumstances whether Davis’s consent to a blood test was both free and voluntary.  The Georgia Court of Appeals held that under Williams v. State,     Ga.     (Case No. S14A1625, March 27, 2015) and Missouri v. McNeely, 569 U.S. ____, 133 Sgt 1552, 185 LE2d 696 (2013), that where a DUI suspect challenges the validity of his consent to chemical blood tests, the Prosecution must prove that the Defendant gave free and voluntary, actual consent.   The extraction of blood is a search under the 4th Amendment to the U.S. and Georgia Constitution.  It does not even matter that Defendant requested a blood test in response to Implied Consent as that is not equivalent to actual consent by itself.

-Author: George Creal

Atlanta DUI Lawyer | DUI Attorney Atlanta