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New Case Review: Blazek v. The State, A23A0949. Court of Appeals of Georgia, First Division.

Decided: August 7, 2023:

Brian Blazek was arrested for DUI after he was contacted by Gwinnett County Police to investigate a called-in complaint that Blazek had possibly been operating an 18-wheel tractor-trailer while intoxicated.

Blazek was contacted by police while standing outside and next to his Tractor.

Blazek consented to field sobriety tests and portable breath tests.

The arresting officer read Blazek the pre-Elliott implied consent notice, which included a warning that his refusal to submit to chemical testing could be used against him at trial, state law required him to submit to tests and that his driver’s license could be suspended if he tested and the results revealed a blood alcohol concentration of 0.08 grams or more as opposed to 0.04 or more as he was allegedly operating a commercial motor vehicle.

Blazek responded yes to a breath test after hearing the incorrect implied consent, which showed that his blood alcohol concentration was 0.186.

Blazek later filed a motion to suppress the results of the breath test, arguing that he had not knowingly and willingly consented to the test because the implied consent notice contained misstatements of law and overstated the applicable blood alcohol limit.

The trial court denied Blazek’s motion to suppress, and he was convicted of DUI.

Blazek appealed the conviction, arguing that the trial court erred in denying his motion to suppress.

The Court of Appeals of Georgia affirmed the Gwinnett County State Court conviction, holding that under the “clearly erroneous” standard of review Blazek had freely and voluntarily consented to the breath test under the totality of the circumstances. The case had previously been on appeal and was remanded to the trial court determine if there was actual consent under a totality of the circumstances. The trial court found that despite the misstatements in law contained in the implied consent notice that a refusal of breath test could be used against, the actual legal limit being half the legal limit read in the implied consent notice and that Georgia law required him to consent that there was no evidence in the record that Blazek’s consent was affected by the contents of the erroneous implied consent and his consent was voluntary.

The court found that Blazek was not so impaired as to render him incapable of consent and that there was no evidence that Blazek was coerced or threatened in his interaction with the arresting officer. Additionally, the court noted that Blazek had performed all of the field evaluations, including the Intoxilyzer test, and that he was not charged with a commercial DUI and did not lose any driving privileges as a result of his arrest.

This is an interesting case as it essentially states that the Trial Court can make a evidentiary finding that like the Isrealites of Isiah in the old testament that despite having ears they can’t hear and can’t understand what was just read to him. Secondly, when reviewing a ruling on a motion to suppress, Georgia Courts should review the trial court’s factual findings for clear error and its legal conclusions de novo. See Vansant v. State, 264 Ga. 319, 320(1), 443 S.E.2d 474 (1994). It was not disputed that the wrong implied consent was read. There is no disputed fact that was resolved by the trial court. “[T]o justify a warrantless search on the grounds of consent, the State has the burden of proving that the consent was freely and voluntarily given under the totality of the circumstances.” Evans v. State, 308 Ga. 582, 842 Se 2d 837 (2020). The State must prove that the implied consent did not affect his consent and not the other way around. The Court of Appeals has flipped the burden of persuasion on the Defendant. Hopefully, the attorney’s in this case will apply for certiorari to the Georgia Supreme Court.

This case is a cautionary reminder that the implied consent notice is not a magic bullet and that a defendant can still be found to have voluntarily consented to a breath test even if the notice contains errors, and may be forced to take the witness stand and say so plainly. However, the court will consider a number of factors in determining whether consent was voluntary, including the defendant’s age, education, and intelligence, as well as the nature of his interaction with the arresting officer.

If you have been arrested for DUI, it is important to speak with an experienced DUI lawyer to discuss your case. A lawyer can help you understand the law and your rights and can represent you in court.

Contact us today to schedule a consultation.


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