Jones v. State (2013) – Georgia Court of Appeals
On October 30, 2011, Robert Lee Jones was pulled over, and after a standard investigation, arrested for suspicion of DUI. The arresting officer read Jones his implied consent rights, specifically asking if Jones would submit to a blood test. Jones agreed and was transported to the jail by a different officer. At the jail, the transporting officer did not take Jones’ blood but had him perform a state-administered chemical breath test and did not re-read Jones his implied consent rights. There was no further conversation about chemical tests, and Jones took the breath test. In his bench trial, Jones moved to suppress the breath-test result because the arresting officer only referred to a blood test, not a breath test, when reading him his implied consent rights. Jones’ motion was denied, and based on his motion he appeals that the trial court erred. Citing Collins v. State, 290 Ga. App. 418, 420 (1) (659 SE2d 818) (2008), Doyle v. State, 281 Ga. App. 592, 594-595 (2) (636 SE2d 751) (2006), and McMullen v. State, 316 Ga. App. 684, 693-694 (3) (a) (730 SE2d 151) (2012), the Court affirms the trial court’s ruling because Jones’ initial consent to a blood test, and subsequent lack of protest or inquiry into an independent test, validate his breath test results.
First, in Collins, “the Court explained that ‘the determinative issue with the implied consent notice is whether the notice given was substantively accurate to permit the driver to make an informed decision about whether to consent to test.’” Second, in Doyle, the Court ruled that to prove a defendant consented to a chemical test, the State only has to show that the defendant was read his or her implied consent rights that the defendant did not explicitly refuse the test. Third, in McMullen, the Court ruled that if a defendant “voluntarily consents” to a chemical test, the implied consent warning is not required. For these reasons, generally, Jones’ breath test results were deemed valid even though he consented specifically only to a blood test. The main issues in this appeal, something we covered recently with Nagata v. State (2013), are the leniency granted to police officers and general loopholes involved in reading the implied consent warning and obtaining chemical evidence during DUI investigations.
As the Court explains in Collins, the express purpose of the implied consent warning is to allow the defendant to make an informed decision about consenting to a chemical test of their bodily substances. The warning is succinct and provides some decent information for a defendant, but common sense will tell you that a lot of things happen in a DUI arrest that can create confusion. For one, in many DUI investigations a defendant will take two different breathalyzers – a hand-held one and a chemical one – and even the most basic explanation of their difference is hardly ever offered. Many defendants end up “refusing” the chemical breath test because they’ve already taken a hand-held breath test and don’t see why they should take another breath test. Also, the implied consent warning states that if you refuse a chemical test your license will be suspended for one year, which simply isn’t necessarily true. Many times defendants have told us that they thought a chemical test was a requirement and not a choice. Generally, people under arrest do not choose to defy the police, and police take advantage of this by playing dumb and guiding defendants through chemical tests. In Jones, Jones consented to a blood test and it is unclear if took a hand-held breath test. When taken to jail and presented with a chemical breath test, was he supposed to know only from the implied consent warning that this chemical breath test would replace his blood test and as evidence function the same? The Court says it doesn’t matter.
In McMullen, the Court also said that “voluntary consent” to a chemical test doesn’t require the implied consent warning, as if “involuntary consent” was an option. At this juncture, the Court’s position regarding implied consent is so clear and steadfast that the spirit of the law, as expressed in Collins, may even be invoked to render it toothless. The exception has finally swallowed the rule. Implied consent is dead! Our only hope now lies in either an appeal or the remarkably similar facts of Missouri v. McNeely pending now before the U.S. Supreme Court.