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McAllister v State – Sweeping Implied Consent Under the Rug

McAllister v. State, A13A1897, January 22, 2014. Daniel McAllister was arrested in Cherokee County after encountering a police roadblock. He refused the Deputies’ request for a breath test after reading implied consent rights. The Deputy drove McAllister to the jail where he applied for a warrant from a local magistrate for a blood draw.  The Magistrate signed the warrant and McAllister were transported to a local hospital for a blood draw.  The blood test came back at  0.127 above the legal limit of 0.08. The Trial Court denied the motion to suppress the warrant finding that a valid search warrant could be used to obtain a blood draw.

McAllister argued that because the OCGA 40-5-67.1(d) states that “no test shall be given” if a driver refuses to submit to chemical testing after an officer reads the implied consent statute. The Court of Appeals concluded that because the legislature added OCGA 40-5-67.1 (d.1) which “clarified” this language stating that “nothing in this code section shall be deemed to preclude the acquisition or admission of evidence of a violation of code section 40-6-391 if obtained by voluntary consent or a search warrant as authorized by the Constitution or laws of this State or the United States.”  The Court of Appeals held that this language is not contradictory because the State may only apply for a warrant so a warrant is only a possibility.

The Court of Appeals seems to have abandoned previous precedent on construing contradictory and confusing statutes. In Busch v. State, 271 Ga. 591, 523 S.E.2d 21 (1999), the Georgia Supreme Court explained that in construing a statute, the goal is to determine its legislative purpose. In this regard, a court must first focus on the statute’s text. In order to discern the meaning of the words of a statute, the reader must look at the context in which the statute was written, remembering at all times that “the meaning of a sentence may be more than that of the separate words, as a melody is more than the notes.” [citing, Helvering v. Gregory, 69 F.2d 809, 810-811 (2nd Cir.1934)]. If the words of a statute, however, are plain and capable of having but one meaning and do not produce any absurd, impractical, or contradictory results, then this Court is bound to follow the meaning of those words. Hardwick v. State, 264 Ga. 161, 163, 442 S.E.2d 236 (1994); Tuten v. City of Brunswick, 262 Ga. 399, 404, 418 S.E.2d 367 (1992)Hollowell v. Jove, 247 Ga. 678, 681, 279 S.E.2d 430 (1981). If, on the other hand, the words of the statute are ambiguous, then this Court must construe the statute, keeping in mind the purpose of the statute, See Sizemore v. State, 262 Ga. 214, 216, 416 S.E.2d 500 (1992)Telecom*USA v. Collins, 260 Ga. 362, 363(1), 393 S.E.2d 235 (1990). and “`the old law, the evil, and the remedy.’ OCGA § 1-3-1(a).”Kemp v. City of Claxton, 269 Ga. 173, 175, 496 S.E.2d 712 (1998). Moreover, because this is a criminal statute, it must be strictly construed against the State. Hughes v. State, 269 Ga. 819, 821, 504 S.E.2d 696 (1998)State v. Mills, 268 Ga. 873, 875, 495 S.E.2d 1 (1998).

-Author: George Creal

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