Williams v. State, A09A0836, April 23, 2009, the Georgia Court of Appeals suppressed the blood result of a Defendant to whom he did not read implied consent. This is really of no surprise as it has been clear and undisputed law that in order for a state-administered chemical test could be admitted into evidence a DUI suspect must be read implied consent rights.
Implied Consent rights read as follows: “Georgia law requires you to submit to state-administered chemical tests of your blood, breath, urine, or other bodily substances for the purpose of determining if you are under the influence of alcohol or drugs. If you refuse this testing, your Georgia driver’s license or privilege to drive on the highways of this state will be suspended for a minimum period of one year. Your refusal to submit to the required testing may be offered into evidence against you at trial. If you submit to testing and the results indicate an alcohol concentration of 0.08 [0.02 for drivers under 21 and 0.04 for commercial truck drivers] grams or more, your Georgia driver’s license or privilege to drive on the highways of this state may be suspended for a minimum period of one year. After first submitting to the required state tests, you are entitled to additional chemical tests of your blood, breath, urine, or other bodily substances at your own expense and from qualified personnel of your own choosing. Will you submit to the state-administered chemical tests of your (designate which tests) under the implied consent law?”
In summary, you have the right to refuse but you will have your license suspended, you have a right to an additional test if you submit to their test, if you have a blood alcohol content over the legal limit you may lose your license for a year.
The State argued that Implied Consent was not necessary. The State cited a 2006 amendment to OCGA 40-5-67.1 which provides that nothing in the implied consent statute “shall be deemed to preclude the acquisition or admission of evidence of a violation of [Georgia DUI laws] if obtained by voluntary consent or a search warrant as authorized by the Constitution or laws of this state of the United States. ” [emphasis added].
The DUI Police officer had asked Williams for a blood test and he agreed. The Court found that this amendment did not apply to the Williams case because the arrest pre-dated the amendment to the statute and this was a substantive change in the law.
The Court left this analysis for another day. It should be noted that the amendment does qualify consent, this would not be the same as consent to search waiving 4th Amendment rights. By qualifying consent with the term “voluntary”, it would seem that the consent would have to be obtained without prompting by the police. Voluntary is defined by Merriam-Webster’s Online Dictionary as “1: proceeding from the will or from one’s own choice or consent 2: unconstrained by interference: self-determining 3: done by design or intention: intentional <voluntary manslaughter> 4: of, relating to, subject to, or regulated by the will <voluntary behavior> 5: having the power of free choice 6: provided or supported by voluntary action <a voluntary organization> 7: acting or done of one’s own free will without valuable consideration or legal obligation…synonyms voluntary, intentional, deliberate, willing mean done or brought about of one’s own will. voluntary implies freedom and spontaneity of choice or action without external compulsion <a voluntary confession>. intentional stresses an awareness of an end to be achieved <the intentional concealment of vital information>. deliberate implies full consciousness of the nature of one’s act and its consequences <deliberate acts of sabotage>. willing implies a readiness and eagerness to accede to or anticipate the wishes of another <willing obedience>.” The definition implies both freedom and spontaneity. This is also true as ambiguities in a criminal statute must be construed in favor of the defendant and statutes must be read “in para material” meaning interpreted in such a way as to not render one or other meaningless.
Statutes on the same subject are construed together, even if they were enacted or adopted at different times. Uniform State and Rule Construction Act, Section 18(f)(3). The legislature is presumed to have adopted a new statute in the light of and with reference to, earlier acts on the same subject. St. Louis, I. M. & S. R. Co. v. the United States, 251 U.S. 198, 64 L.Ed 225, 40 S. Ct. 120 (1920).
Ever feel like you had the law pulled out from under you? You can thank Chuck Spahos, Solicitor General in Henry County for this gem. He lobbied hard for this one. It was his baby in the legislature and I think he is still chuckling