On March 27, 2015, In Williams v. State, 296 Ga. 817, 771 SE2d 373 (2015), the Georgia Supreme Court broke the mold on DUI blood, breath, and urine test cases finding in short that the state must provide not just that Georgia Implied Consent Rights had been read but that there was actual consent to search under the 4th Amendment as the United States Supreme Court found that there is no inherent exigency in a DUI that justifies ignoring 4th Amendment protections. The Georgia Supreme Court found that Trial Courts should not consider Implied Consent de facto Actual Consent under the 4th Amendment but rather consider the voluntariness of the consent under the totality of the circumstances of each case.
1) The Plain Vanilla DUI: The First case Kendrick v. State, 335 Ga. App. 766, 782 SE2d 842 (2016) came on February 23, 2016. Kendrick was stopped for running a stop sign. Kendrick generally performed well on field sobriety test except for one test which indicated a “possibility of intoxication.” (This is interesting as “probable cause” to arrest requires a “reasonable probability of impairment” not just a hunch or possibility so it seems the case should have been dismissed before trial. See Bostic v. State, 332 Ga. App. 604, 774 SE2d 175 (2015).) The Officer read Kendrick the Georgia Implied Consent rights for suspects over 21. See OCGA 40-5-67.1 Kendrick said yes to the Implied Consent rights asked no questions and made no comment. In Kendrick, the Court of Appeals concluded that the Officers did not use fear, intimidation, the threat of physical punishment, or lengthy detention to obtain consent. Further, the Court of Appeals found there was no evidence that youth, lack of education, or low intelligence or that she was so intoxicated that it negated consent. The Court rejected her assertion of coercion because while in handcuffs and under arrest – the language of the statutory implied consent statute and that she was not informed of her 4th Amendment right against unreasonable searches and seizures. The Court did not feel that this was “mere acquiescence to authority” which is not actual consent.
2) Not too Drunk to Consent – Parsing Facts: The Second case is State v. Depol, A15A1947, (March 15, 2016) where the Court of Appeals reversed the Trial Court’s finding that there was no actual consent for a DUI breath test as the Depol’s level of intoxication negated the consent required under the 4th Amendment. The case involved a hit-and-run accident where the police investigating took almost 45 minutes to detect and determine that there was probable cause for DUI. The Trial Court found that the video admittedly showed the Defendant was extremely impaired as he had difficulty using his cell phone, could not after 45 minutes find his insurance information, was swaying, was confused about his timeline of events, not changing his tire, delayed speech, not know where he was going or coming from and unsure of when he consumes alcohol. The Court of Appeals found the opposite after watching the video: swaying, capable of exercising free will, exchanged appropriate and well time well-timed greetings, admitted to running off the road due to bad tires, explained that he planned to return to the accident scene after he changed his tire, worked at unwinding something, and responded to questions appropriately. The Court found after a “de novo’ review of the video that Depot was not so intoxicated that it negated voluntary consent.
3) No English Not No Knowing – Free and Voluntary Not Understanding:: The Third case is State v. Flores-Gallegos, A16A0339, May 11, 2016. Defendant responded “No English” after the Police Officer had arrested him for DUI and read him the Georgia Implied Consent rights. The Trial Court found that there was no evidence of “actual, knowing, and voluntary” consent. The Court of Appeals remanded as “knowing” consent is not required in a totality of the circumstances test just “free and voluntary” actual consent.
4) Intoxicated with a Head Injury Not Consent: The Fourth case is State v. Bowman, A16A0555, June 7, 2016. The defendant was involved in a single-car accident. The Court of Appeals affirmed the Trial Court’s ruling that there was no actual consent and suppressing the breath test. The Court of Appeals found that while there were no threats or prolonged detention, there was evidence that Bowman was in a significant accident, suffered a cut to his head, was extremely unsteady, no Miranda rights were read, most of his responses to police questioning were nothing mattered and going to jail anyway, both officers agreed Bowman was significantly intoxicated, made nonsensical comments about playing basketball, vomited to the point of choking in the back of the police cruiser, and jail custodians refused to accept him and sent him to the hospital. The Court held that there was not enough evidence to show voluntariness and not mere acquiescence.
5) Too Intoxicated to Consent: The Fifth case is State v. Jung, A16A0527, July 7th, 2016 where the Court of Appeals held that there was sufficient evidence of intoxication to negate voluntary actual consent to a breath test. Jung was involved in a two-car accident. Jung had slurred speech, bloodshot watery eyes, had trouble walking or even standing, made nonsensical responses to questioning, tried fields but had to be helped due to stumbling and staggering, appeared confused. The Trial Court found that Jung could not give actual consent based on his confusion and high level of intoxication. The Court of Appeals rejected the State’s argument that the Trial Court must consider factors other than confusion and intoxication when evaluating actual consent under the 4th Amendment.
6) Unconscious No Consent: The Sixth Case is Bailey v. State, A16A0200, July 13, 2016, where the Court of Appeals held that the State can not prove actual consent under Williams for a blood and urine test where the person is unconscious. Bailey was involved in a single-car accident. When the State Trooper arrived at the hospital to get consent for a blood and urine test, Bailey was unconscious. Because consent is implied by statute if you are unconscious, the trooper collected blood and urine. However, after McNeely v. Missouri, ___ US ___ (133 Sgt 1552, 185 LEd2d 696) (2013), the State must obtain a warrant or show exigent circumstances to obtain a blood or urine test from an unconscious individual.
7) Bloody Nose Doesn’t Negate Consent: The Seventh case is State v. Demenge-Delhoyo, A16A0362, July 15, 2016. The defendant was involved in an accident where she sideswiped another car and continued driving. The other driver stopped her and flagged down a police officer. The Police Officer requested that Defendant participates in field tests which she refused. The Officer then began arresting the Defendant for DUI and she struggled to get free. Defendant then agreed to DUI field tests. The Officer released her and read her Miranda rights. Defendant admitted to using Xanax that morning. The Officer observed 6/6 clues on the HGN, 6/8 on the walk and turn, and 2/4 clues on the one-leg stand. She then declined a portable breath test. The Officer then began to arrest her again for DUI. She struggled to get free and was eventually slammed onto the hood of the police cruiser. The Officer pulled her up and put her in the back of the police car to read the DUI testing Georgia Implied Consent rights. The defendant was silent for six seconds and then replied Yep when the Officer asked “yes or no.” She then signed a consent form at the hospital. The Trial Court found that there was no actual consent for testing as consent was not voluntary because it was obtained only after the Defendant was slammed on the hood of the police car and the hospital form incorrectly stated that testing was required by law. The Court of Appeals reversed the finding that based on the video there was no evidence that the consent was neither free nor voluntary.
8) Williams II – Too Intoxicated to Follow Instructions Too Intoxicated to Consent: In State v. Williams, A16A0509, July 7, 2016, the Court of Appeals hear the Williams case for the second time. In the first Williams, Williams I, the Supreme Court remanded the case back to the trial court to determine whether there was actual consent to a blood test. The Trial Court held a hearing and found that Williams was too intoxicated to consent under a totality of the circumstances test. There was a report of a driver driving erratically. Williams leaned on his vehicle as walked to its rear. He leaned on the trunk as he spoke to officers. He fell back on his trunk. He was very unsteady, confused, and had thick, slurred speech. Williams could not follow the instructions to follow the Officers finger during the HGN test. Williams was unable to follow instructions on the walk and turn evaluation. Williams did not perform the one-leg stand as instructed. Williams did not follow instructions on the lack of convergence test. Williams did complete the Rhomberg balance test. After implied consent, Williams asked if that was a yes or no question. At the hospital, Williams signed voluntary consent forms that were given to him but there was no testimony that they were read to him. The Court of Appeals affirmed the trial court holding that a defendant’s level of intoxication may be an appropriate factor for consideration among the totality of the circumstances in determining the voluntariness of consent. Citing Bowman above.
9) O’Shields -medicated by the hospital and awaiting surgery does not negate consent for a blood test under the 4th Amendment even without Implied Consent: In O’Shields v. State, A19A0899, September 11, 2019, the Court of Appeals affirmed in part and reversed in part a vehicular homicide based on a methamphetamine DUI case where O’Shields was rushing his passenger to the hospital after he “collapsed on him” presumably from a drug overdose and O’Shields rear-ended a fire truck stopped for a previous un-related accident. Strangely, there was no record of an immunity motion filed for seeking medical assistance for a drug overdose which would have taken care of the possession charge pre-trial pursuant to OCGA 16-13-5 and a trooper testified that methamphetamine can slow response time but based on upon what foundation? A police officer is not qualified to testify to the pharmacological effects of methamphetamine on human response time. Neither of these parts of the record were developed but are glaring issues from the factual background of the opinion. Hopefully, these issues will be addressed at the new trial ordered by the appellate court. O’Shields was not even questioned at the accident scene but only at the hospital while awaiting surgery. There was no record of what happened to O’Shields medically or what condition he suffered or what surgery he was awaiting.
Troopers testified that he was able to answer questions, was aware of the accident, and asked about his passenger. He did not even realize his passenger was killed. Troopers testified that O’Shields seemed cognizant, had slurred speech and had likely received pain medical prior to the interview but there was no evidence as to what drugs were administered or how much in the record. This should have been tendered by declaration of medical records at the motion hearing on actual consent for the blood test under the 4th Amendment by the Defense attorney. Further, O’Shields was allegedly not under arrest or charged with DUI so no DUI implied consent rights were read and the Troopers simply asked for consent for a blood search.
Defense lawyers argued that there was no actual consent due to confusion from the accident, being under the influence of pain medication and that Defendant did not sign any medical consent forms. The Trial Court denied the motion with out any analysis or explanation. Rather than remanding the case for further findings of fact, the Court of Appeals affirmed the denial of the motion to suppress the blood test. The Court of Appeals held that the fact the Defendant was under the influence of drugs did not negate consent automatically nor did the failure to read implied consent negate consent. The Court of Appeals found that it assumes that the Trial Court knew and followed the law absent affirmative evidence to the contrary. The Court of Appeals found that the Defendant was aware of the accident, understood the request for consent, and gave consistent and appropriate responses to police questioning despite the other issues. The Trial Court’s denial of the lack of actual consent for the blood test under the 4th Amendment was affirmed.
Despite the Court of Appeals opinion there is an insufficient record here for the State to carry its burden of proving actual consent or that the Trial Court conducted the required totality of the circumstances analysis and the case should have been remanded for further proceedings. See McMaster v. State, 344 Ga.App. 222 (2018). The State and not the Defendant has the burden to prove there was actual consent for a blood test. Kendrick v. State, 335 Ga. App. 766, 782 S.E.2d 842 (2016)(holding in analyzing a consent to a blood test the only question in regard to the validity of the search is whether the State met its burden of proving that Kendrick actually consented “freely and voluntarily under the totality of the circumstances); State v. Vaugh, 325 Ga. app. 633, 754 S.E.2d 614 (2014)(holding the in context of a motion to suppress While such evidence may exist, it was not presented to the trial court, and the State bears the burden of proving that Officer Ferrer’s detention of Vaughn was lawful); Williams v. State, 314 Ga. App. 840, 726 SE2d 66 (2012)(Given the absence of competent evidence on this point, we are constrained to find that the state did not meet its burden of showing the stop was legal, and we must view the stop as unconstitutional).
On a side note, O’Shield’s case was reversed and a new trial was ordered because the Trial Court refused to allow a charge on a lesser included offense of misdemeanor vehicular homicide based upon the speeding and following too closely. The Court of Appeal found, “We have consistently held that, where there is some evidence — no matter how slight — that there could be another traffic violation that caused the accident, the defendant is entitled to a jury instruction on the lesser included offense of second degree vehicular homicide.” See, e.g., Smith, 342 Ga. App. at 708-709 (1); Brown, 287 Ga. App. at 757-759; Lefler, 210 Ga. App. at 610-611 (2); Hayles v. State, 180 Ga. App. 860, 861-862 (3) (350 SE2d 793) (1986).
Some commentators claim that in light of Birchfield v. North Dakota, 136 S.Ct. 1535 (2016) which held that a breath test is search incident to arrest that the Williams Actual Consent Analysis will be limited to blood and urine. However, at least to date most Trial Courts, the Georgia Code and Constitution still prevent a breath test from being a search incident to arrest. Under the Georgia Constitution’s right against self incrimination prohibits both WORDS and ACTS that incriminate as opposed to the Federal Constitutional right against self incrimination which protects just against WORDS that incriminate.
The GEORGIA CONSTITUTION provides that under the1983 Georgia Constitution Art. I, Sec. I, Paragraph XVI. (Self-incrimination): “No person shall be compelled to give testimony tending in any manner to be self-incriminating.” and 1983 Georgia Constitution Art. I, Sec. I, Paragraph I (Due Process): No person shall be deprived of life, liberty, or property except by due process of law.
The 1983 Georgia Constitution Art. I, Sec. I, Paragraph XVI. (Self-incrimination)applies to acts such as blowing into breath testing device and passively allowing blood draw. “[T]he Georgia Constitution has long granted more protection to its citizens than has the United States and that, while the [Georgia] cannot grant less protection, it can grant more.” Creamer v. State, 229 Ga. 511 (1972). Quoting Day v. State, 63 Ga. 667 (1879), the Creamer court said that “a defendant cannot be compelled to incriminate himself by ACTS or WORDS.” Examples of acts deemed to be compelled in violation of the Georgia Constitution include: handwriting samples, State v. Armstead,152 Ga. App. 56 (1979); police forcing defendant to produce lottery tickets by threat, Grant v. State, 85 Ga. App. 610 (1952); threat of fine for failing to drive a motor vehicle upon scales, Aldrich v. State, 220 Ga. 132 (1964); charging Defendant with contempt for failing to produce pornographic films in his possession, Walter v. State, 131 Ga. App. 667 (1974); and forcing a defendant to place foot in shoe impresion near scene of burglary, Day v. State, 63 Ga. 667 (1879).
Finally, O.C.G.A 17-5-1 lists what maybe obtained by search without a warrant and curtails what is allowable in a search incident to arrest. Alcohol Breath testing is neither listed nor justified under OCGA 17-5-1.
Therefore, the Georgia Constitution can be invoked to refuse breath testing and preventing a search incident to arrest.
In conclusion, it appears that jury is still out on actual consent and DUI breath, blood and urine testing.