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1999 Georgia DUI Law
Case Law Synopsis
By J. Michael Mullis
Georgia DUI Lawyer

CLICK HERE TO READ THE COMPLETE AND UP-TO-DATE VERSION OF GEORGIA DUI LAW IN PLAIN ENGLISH

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THIS IS NOW AN ARCHIVAL PAGE. IT CONTAINS 1999 GEORGIA CASE LAW. NO NEW CASES INTERPRETING GEORGIA DUI LAW WILL BE ADDED TO THIS PAGE.

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CASES OF SPECIAL IMPORTANCE
IMPLIED CONSENT
INTOXILYZER 5000
ARTICULABLE SUSPICION
ROADBLOCKS
SPEEDY TRIAL
DOUBLE JEOPARDY
MIRANDA
JURY CHARGES
MERGER OF OFFENSES
ADMINISTRATIVE LICENSE SUSPENSION
Rx DRUG
FIELD SOBRIETY TESTS
EXPERT TESTIMONY
VENUE
SIMILAR TRANSACTION
OTHER DUI CASES
PROBABLE CAUSE TO SEARCH
CASES WITH DUI IMPLICATIONS
STATUTE OF LIMITATIONS
PROBATION REVOCATIONS

RECENT DEVELOPMENTS IN GEORGIA CASE LAW

Cases of Special Importance

OCGA § 40-6-391 (a)(6) Ruled Unconstitutional

Love v. State 271 Ga. 398 (June 1, 1999)

In a June 1 opinion, the Georgia Supreme Court held that the portion of the DUI statute that distinguished between medically prescribed marijuana and recreational use marijuana is unconstitutional. Prior to this case, if a blood or urine test revealed marijuana metabolites in your system, and you had NO prescription for the marijuana, you were per se in violation of the DUI statute. On the other hand, if a blood or urine test revealed marijuana metabolites in your system, and you had a prescription for marijuana, the State did not have a per se case, but would have to prove that the ingestion of marijuana caused you to be a less safe driver.

This case does not necessarily mean that a DUI marijuana case goes away. It only means that for the state to have a chance at success, it will have to proceed under the less safe portion of the statute rather than the per se portion.

Intoxilyzer 5000 - Foundation

Casey v. State A99A2092; 1999 WL799537 (October 8, 1999)

In Georgia DUI cases, where a breath test is requested on the Intoxilyzer 5000 (the only official breath testing device), the Intoxilyzer 5000 training manual requires a twenty-minute wait in a controlled environment to ensure that the breath sample is not contaminated with extraneous alcohol from such sources as a last drink, use of mouthwash, burping, belching or vomiting. If, for example, someone belches during the twenty-minute waiting period, this can introduce alcohol into the mouth, and the waiting period should be restarted. Up until now, the Appellate Courts have held that noncompliance with the waiting period goes to the weight and credibility of the test result, not its admissibility. However, in an October 8^th case, defendant's initial breath test indicated the presence of mouth alcohol. The officer did not wait the required twenty minutes before retesting. The Court of Appeals said that the failure to observe the twenty-minute waiting period prior to retesting "compromised the very foundation for admission of defendant's breath test . . ." [DUIGUY Note: This same logic can and should be applied anytime the above conditions are not met on the initial test].

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Implied Consent Notice

Implied Consent – Discovery

In Townsend v. State, 236 Ga.App. 530, 511 S.E.2d 587 (1999) the Court recognized that under the provisions of O.C.G.A. See. 40‑6‑392(a)(4) a defendant is granted "broader discovery rights than did earlier criminal discovery procedures which allowed discovery of only written test results." (The statute provides that "upon the request of the person who shall submit to a chemical test or tests at the request of a law enforcement officer, full information concerning the test or tests shall be made available to him or his attorney.") Under this subsection "a defendant now has the right to subpoena memos, notes, graphs, computer print‑outs, and other data relied upon by a state crime lab chemist in obtaining gas chromatography test results." Unfortunately for Townsend, however, the Court found his subpoena overbroad and any error harmless.

Implied Consent ‑ Independent Test Unreasonably Denied

In Nawrocki v. State, 235 Ga. App. 416, 510 S.E.2d 301 (1998), the Court reversed the denial of the defendant's motion to suppress the results of his State-administered breath test. After submitting to the State's test, and while en route to the jail, Nawrocki requested to be tested a second time on a State-operated breath testing machine. His request was not accommodated. This failure was deemed to be unreasonable by the Court.

In Lambropoulous v. State, 234 Ga. App. 625, 507 S.E.2d 225 (1998), the defendant requested an independent blood test but expressed no preference as to a testing facility. He was transported to the nearest hospital where his blood was drawn and tested. He did not object to the facility at the time. The Court rejected his contention that the procedure utilized by the police denied him his right to an independent test by personnel of his own choosing. In the court's view, "the officer's action in taking [Lambropoulous] to the nearest hospital, and the department policy behind it, were reasonable." Query : Some departments have a policy that the defendant will not be transported for independent testing unless he/she designates a specific facility to do the testing. Is this reasonable, if the defendant has no preference as to where he wants the blood testing done?

Implied Consent ‑ Scope of “Consent” to Implied Consent Testing

Several cases were decided during the past 18 months defining the scope of the consent for testing in D.U.I. cases. Can the results of blood or urine testing of a driver informed of his implied consent rights under O.C.G.A. Sec. 40‑5‑67.1 be used to prove charges other than driving while under the influence?

In State v. Burton, 230 Ga. App. 753, 498 S.E.2d 121 ( 1998), State v. Long, 236 Ga. App. 445, 502 S.E.2d 298 (1998), and State v. Lewis, 233 Ga. App. 390, 504 S.E.2d 242 (1998), the answer was a resounding “no." In these cases the driver was prosecuted for possession of a controlled substance based on positive implied consent blood or urine testing. The implied consent rights warning read to these defendants stated that the testing was for "the purpose of determining if you are under the influence of alcohol or drugs" (O.C.G.A. Section 40‑5‑67.1(b)(3)). It did not advise that the defendant could be prosecuted for felony possession of drugs by virtue of it being detected in the sample given. This use of the evidence exceeded the scope of the consent given and the granting of the defendants' motions to suppress were affirmed in all three cases.

Burton and Long followed State v. Jewell, 228 Ga. App. 825, 492 S.E.2d 706 (1997). (See also State v. Frazier, 229 Ga. App. 344, 494 S.E.2d 36 (1997). Jewell followed previous decisions which held that where a blood or urine sample is taken from a suspect the results of an analysis of the same may not be used for purposes of which the suspect was not advised and did not consent to. In the court's view to do so would constitute a unreasonable search and seizure in violation of Fourth Amendment of the U.S. Constitution. Beasley v. State, 204 Ga.App. 214, 419 S.E.2d 92 (1992) (Urine sample given as a condition of bond could not be used to prove possession of drugs found in sample); State v. Gerace, 210 Ga. App. 874, 437 S.E.2d 862 (1993) (Blood sample obtained in D.U.I. investigation could not be used as evidence that defendant's DNA was same as a previously unidentified rapist.) Similarly, Turpin v. Helmeci, 271 Ga. 224, ___ S.E.2d ___ (S99A0453, 6-14-99), followed Gerace, Jewell, and Beasley, in holding that evidence obtained by implied consent cannot be used for purposes beyond the scope of that consent.

The approach taken in these cases would seem to be consistent with federal precedent. A consent to search must be the product of an essentially free and unrestrained choice by its maker. Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed. 2d 854 (1973). "When the consent of the person to be searched is the authority for the action, the scope of the consent must be measured by all of the circumstances and not only what a person says in response to a request. The type, duration, and physical zone of intrusion is limited by the permission granted, and only that which is reasonably understood from the consent may be undertaken. “The standard for measuring the scope of a suspect's consent under the Fourth Amendment is that of 'objective' reasonableness ‑‑ what would the typical reasonable person have understood by the exchange between the officer and the suspect?’” Florida v. Jimeno, 500 U.S. __, 111 S. Ct. 1801, 114 L. Ed. 2d 297, 302 (1991). “Consent may be as limited as the consenter wishes, and the search may not exceed the reasonably understood parameters. . . . The suspect is not required to call a halt when the search has gone beyond the scope of consent given; the burden remains on the State to show that the scope of the officer's search did not exceed the permission given." Springsteen v. State, 206 Ga. App. 150, 152, 424 S.E.2d 832 (1992). Accord: United States v. Strickland, 902 F.2d 937, (1 1th Cir. 1990); United States v. Blake, 888 F.2d 795 (11 th Cir. 1989); United States v. Rackley , 742 F.2d 1266 (1 1th Cir. 1984); United States v. McBean, 861 F.2d 1570 (1 1th Cir. 1988); United States v. Milian‑Rodriquez, 759 F.2d 1558 (1 1th Cir.), cert. denied, 474 U.S. 845, 106 S.Ct. 135, 88 L.Ed.2d 112 (1985); Mason v. Pulliam, 557 F.2d 426 (5th Cir. 1977); United States v. Roark, 36 F.3d 14 (6th Cir. 1994).

Radcliffe v. State, 234 Ga. App. 576, 507 S.E.2d 759 (1998), may have defined the limits of these principles. Radcliffe was involved in an automobile accident in which he was not at fault. After the collision, the elderly driver of the other vehicle went into cardiac arrest and later died. Although Radcliffe did not show signs of being under the influence of alcohol or drugs, the investigating officer read Radcliffe his implied consent rights pursuant to O.C.G.A. § 40‑5‑67.1 (b), and Radcliffe agreed to submit to chemical tests of his blood and urine. (See O.C.G.A. § 40‑5‑55 requiring tests to be performed whenever anyone is involved in a traffic accident resulting in serious injuries or fatalities). These tests showed the presence of marijuana in Radcliffe's blood. Radcliffe was convicted of driving with a controlled substance in his blood in violation of O.C.G.A. § 40‑6‑391 (a) (6).

Radcliffe contended that the implied consent warning failed to properly advise him of the purpose for which he was to be tested. [A person may be convicted of violating Section 40‑6‑391 (a) (6) "without the necessity of showing that the presence of such substance or substances impaired the person's driving ability." Ryals v. State, 215 Ga. App. 51, 52‑53, 449 S.E.2d 865 (1994)].

While acknowledging that "the scope of the consent granted by a defendant to a test to determine alcohol or drug content of blood may be derived from the wording of the implied consent warning read to a defendant", the court applied the provisions of Section 40‑5‑55(a) to sustain the denial of Radcliffe's motion to suppress. It provides that licensed drivers are deemed to have consented to testing "for the purpose of determining the presence of alcohol or any other drug." Because the suspect is aware he is being tested "for a driving related offense" he is deemed to have been "properly advised" of the uses authorized by that statute in the court's view. The Radcliffe decision did not discuss Kevinezz v. State, 265 Ga. 78, 454 S.E.2d 441 (1995), which held the phrase "'driving under the influence . . . has a universally recognized and understood meaning so that reasonable persons could not differ as to its interpretation. . . . That meaning is that a person is under the influence of alcohol when it appears that it is less safe for such person to operate a motor vehicle." [Emphasis added].

Since Radcliffe was decided, the Georgia Supreme Court has ruled that an O.C.G.A. § 40-6-391(a)(6) “presence of marijuana” conviction is unconstitutional. Love v. State, 271 Ga.App. 398, ___ S.E.2d ___ (S99A0509, 6-1-99). In a similar vein, the Court of Appeals has opined that without proof of a “causal connection” to impairment, felony vehicular homicide charges are not legally supportable. Miller v. State, 238 Ga.App. 61, ___ S.E.2d ___, (A99A0544, 4-28-99).

Radcliffe sought certiorari from the Georgia Supreme Court, but Certiorari was denied without opinion on February 5, 1999. Radcliffe has filed a federal habeas corpus action, which is pending at this time.

Cronan v. State, 236 Ga. App. 374, 511 S.E.2d 899 (1999), involved a conviction for 1st degree (felony) vehicular homicide, driving under the influence of marijuana and possession of marijuana and other less serious traffic offenses. All other offenses were merged into the 1st degree vehicular homicide charge for sentencing purposes. Importantly, the police testified that the defendant had sua sponte volunteered that he had smoked marijuana earlier in the evening. Under these facts the Court of Appeals found no harmful error in the admission of the drug test results and affirmed the drug conviction.

Implied Consent ‑ Verbatim Reading of Rights Advisement – Is it “good enough for government work?”

In State v. Moncrief, 234 Ga. App. 871, 508 S.E.2d 216 (1998), held a verbatim reading of the implied consent rights advisement contained in O.C.G.A. See. 40-5-67.1 is no longer required. Despite Moncrief ’s arresting officer's attempt to read those rights to him "slowly, clearly, and painstakingly," he was apparently unable to read the card word for word. The court applied a subsequent (March, 1998) amendment to O.C.G.A. § 40-5-67.1(b) to reverse the suppression of the State's breath test. Moncrief was arrested in March 1997. The March 1998 amendment provides that the notice “shall be read in its entirety but need not be read exactly so long as the substance of the notice remains unchanged." Apparently, reading skills are no longer required for traffic enforcement officers. See also State v. McCabe, 239Ga.App. 297, 519 S.E.2d 760 (A99A1070, 6-24-99) and Sheridan v. State, 236 Ga.App. 350, 511 S.E.2d (1999) wherein the Court of Appeals held that the March 27, 1998 amendment to O.C.G.A. § 40-5-67.1(b), as described above, applied retroactively to arrests prior to March 27, 1998.

Implied Consent – Misleading Information

State v. Terry, 236 Ga.App. 248, 511 S.E.2d 608 (1999). The Court of Appeals affirmed trial court’s granting of motion in limine where officer read the implied consent notice correctly (twice) but then explained that the defendant could get an independent blood test “after bonding out.” The Court said these additional comments were misleading and made it impossible for the defendant to make an informed decision. Thus, the test was inadmissible.

Implied Consent – State’s Burden

Miller v. State, 238 Ga.App. 61, ___ S.E.2d ___, (A99A0544, 4-28-99). Held: Unless the State meets its burden of showing that an officer fully informed the arrested person of his right to a chemical test independent of the State-administered test, the results of the State’s test are inadmissible. Here the Court reversed conviction where the State’s only evidence concerning the implied consent warning was the deputy’s conclusory statement that he read a warning contained on a card. The deputy did not testify as to exactly what rights he informed defendant of or the actual contents of the card. The card itself was never introduced into evidence.

Implied Consent and Miranda

State v. Moses, 237 Ga.App. 764, 516 S.E.2d 807, (A99A0273, 4-27-99); Now that Legislature has amended O.C.G.A. § 40-5-67.1(a) to allow officers to “subsequently require a test or tests of any substances not initially tested,” no Miranda warnings are required before officer requests additional tests. Thus, the “underpinnings of Warmack’s conclusion have fundamentally changed.”

Miles v. State, 236 Ga.App. 632, 513 S.E.2d 39 (1999); Defendant’s post-arrest silence in response to request to submit to a blood test is admissible, despite fact that the defendant had already been advised of his Miranda “right to remain silent.”

Implied Consent - State's Burden

Miller v. State 238 Ga.App 61 (April 28, 1999)

The arresting officer testified that he read the implied consent notice to defendant from a card issued by the police department. The actual language of the card was not introduced into evidence. The court held that failure to tender the substance of the notice into evidence rendered the .112 breath test inadmissible at trial.

Implied Consent - Weird Law on Custodial Detention

Bass v. State 238 Ga.App. 503 (June 10, 1999)

The Georgia Court of Appeals handed down an interesting decision. Although the decision seems simple on the surface, I must supply the lay reader with a significant amount of background information in order to understand the issues. I apologize beforehand if my analysis is unclear.

The arresting officer noticed that defendant appeared to be speeding. This act occurred outside the jurisdiction of the officer, so he followed defendant's vehicle until it entered the proper jurisdiction. He followed defendant for a while until he noticed defendant make a wide turn staying in the wrong lane for 150 to 200 yards. The officer stopped defendant and made the following determinations: 1) he was more nervous than normal, 2) he had an odor of alcohol on his breath, 3) he talked fast, and 4) his eyes were red. The officer wanted to administer a roadside breath test, but before he did so, he advised defendant of his implied consent rights. Defendant tested positive on the hand held device and was transported to take the official test on the Intoxilyzer 5000 where he registered .127. Fifteen to twenty minutes after taking the official test, Defendant requested his own independent test. He did not have $80.00 cash to take the independent test and was allowed the use of a phone. He made some phone calls, but made no further mention of the independent test.

At a pretrial hearing, defendant's attorney contended that the Intoxilyzer test results should be suppressed from evidence because the implied consent notice was read prior to the time defendant was arrested. According to the law, the notice shall be read at the time of the arrest. Prior to trial, the judge ruled that since defendant was not free to leave, he was therefore under arrest and the reading of the implied consent was timely. For some reason known only to the Good Lord, the Court of Appeals upheld the trial judge's decision to allow the test results into evidence.

The question at this point is whether defendant was under arrest at the time he was advised of the implied consent notice and asked to take the roadside breath test. Under both Federal and Georgia law, someone is under arrest when a hypothetical reasonable person in the same circumstance would think he was under arrest. Obviously, if the officer were to say, "I am placing you under arrest," that is an arrest. If the officer were to put handcuffs on an accused, place him in the patrol car, and transport him to the station, that is an arrest. However, under the law, simply not being free to leave does necessarily mean you are under arrest. Consider the following scenario. You are stopped for speeding. Clearly, until the officer writes the ticket, you are not free to leave, but you are not under arrest. At this point you are in investigative detention. If the officer then smells alcohol on your breath, he can ask you if you've had anything to drink (whether or not you answer is up to you). He can ask you this question without advising you of your right to remain silent (Miranda warnings) because you are in investigative detention and not custodial detention (under arrest). Your Miranda warnings attach only when custodial detention (arrest) occurs. On the other hand, if you are under arrest and the officer asks you how much you've had to drink without first advising you of your Miranda rights, your response would be inadmissible at trial.

Now this case starts to get interesting because in most circumstances, the prosecutor wants the investigative detention to last as long as possible so the officer can gather as much incriminating evidence as possible without having to advise the accused of his Miranda warnings. In this case, defendant was not told he was under arrest, was not handcuffed, and had not even taken any roadside field sobriety tests. Why should he or any other reasonable person in that circumstance believe he is under arrest? I see no sane, rational reason why. However, even assuming he should have believed he were under arrest, Georgia appellate courts have held that before any roadside field test is administered, the officer has to advise him of his Miranda warnings, otherwise the test is inadmissible at trial. Defendant's attorney should have brought this up to the trial judge and asked that, because defendant was arrested without being Mirandized, the roadside breath test be ruled inadmissible at trial. Of course this is small potatoes compared to exclusion of the Intoxilyzer results. After all, with no test results, a conviction is harder to obtain. It appears that the Court of Appeals worked overtime to find that the arrest occurred so early in the stop.

Another issue that the Court of Appeals mentioned, but which did not appear to be raised on appeal, had to do with defendant's request for an independent test. Under the law, if you are arrested for DUI, you must take the test the officer asks you to take. You can then request your own independent test and the officer must take reasonable steps to ensure you get your own test. Otherwise, the test results will be excluded from the trial. In this case it does not appear that the issue was raised on appeal and was not decided by the appellate court. This issue should have been raised and fiercely argued.

Implied Consent - The ICN Is Not Consent to Search for Drug Possession

Turpin v. Helmeci 271 Ga. 224 (June 14, 1999)

In a Supreme Court case, the defendant was arrested for DUI. The arresting officer advised defendant of his implied consent notice (see other parts of this website for a discussion of the implied consent notice). The implied consent notice informs an accused that he is required to give a sample of the requested bodily substance for the purpose of determining if he is under the influence of alcohol or drugs. Defendant in this case gave a sample of his urine. The test of his urine showed amphetamine and methamphetamine in his system. In addition to conviction of DUI and other misdemeanors, defendant was convicted of possession of the two aforementioned drugs. Defendant's attorney never brought up at the hearing to suppress that the consent to take the urine test for the purpose of determining whether or not defendant was under the influence was not consent for purposes of determining whether or not he was in possession of the drugs. The Supreme Court noted that defendant's consent to take the test pursuant to the DUI implied consent warnings was not consent to search his urine for evidence of possession. Defendant's 12-year sentence for possession of the drugs was reversed.

Implied Consent - Strict Compliance Not Required

State v. McCabe 239 Ga.App. 297 (June 24, 1999)

In a DUI case, the trial court refused to apply retroactively an amendment to the implied consent statute. This amendment allows the arresting officer to vary from an exact reading of the implied consent notice as long as the substance of the notice remains unchanged. In holding that the grammatical variations in the officer's implied consent notice did not change the substance of the notice, the Court of Appeals reversed the trial court's suppression of defendant's blood test. The Court of Appeals also held that the officer's advisement that defendant could have an additional "test" rather than "tests" performed was immaterial since defendant did not request any additional testing at all. Anyone charged with DUI should be aware that after taking the test or tests required by the arresting officer, you could have additional tests performed at your own expense. Therefore, if you believe the State test is in error, make sure you have ready access to funds (most hospitals do not take credit cards for this test) to pay for your own test of your blood, breath or urine.

Implied Consent - Impeachment/Jury Charge

Hernandez v. State 238 Ga.App. 796 (June 30, 1999)

Defendant was stopped for driving with no headlights and weaving. The officer and defendant communicated through a mixture of rudimentary English and Spanish. However, the text of the implied consent notice was read entirely in English. At trial, defendant testified through an interpreter and said he did not understand the implied consent notice. The trial court allowed the State, over objection, to impeach defendant using two prior DUI arrests that involved chemical tests. The Court of Appeals held that this was not error as defendant opened the door to being questioned about taking chemical tests after having been read the implied consent notice twice before.

A second issue involved a charge given by the trial court to the jury instructing them that the implied consent warning does not have to be read in Spanish to a Spanish-speaking individual. Defendant argued that the jury should have been told that his inability to understand English put him in the same class as an unconscious person thus rendering him incapable of withdrawing his consent by refusing to submit to the state test. The Court of Appeals did not buy this argument since defendant declined to take the test.

Implied Consent - Refusal

State v. Marks A99A0983; 1999 WL 548634; 99FCDR3039 (July 29, 1999)

Three cars were involved in an accident in Cobb County. Officer Perez arrived and noticed that two drivers were heavily intoxicated. Perez contacted Ms. Marks and noticed a heavy odor of alcoholic beverage on her. She admitted to having four or five drinks and failed at least two of the four field sobriety tests. She also registered positive on the hand-held Alcosensor breath test. During the field testing and questioning of Ms. Marks, Mr. Billings continuously made comments. Ms. Marks was arrested and placed in the back of the patrol car. Officer Perez then addressed Mr. Billings who admitted to having in excess of five drinks. Perez administered the field sobriety tests to Mr. Billings who failed them. He was arrested and advised of his implied consent rights. He refused to take the official state test. Billings was then placed in the back of the patrol car with Ms. Marks. Perez then read the implied consent notice to Ms. Marks (16 minutes after she was arrested). When Perez asked Ms. Marks if she would submit to the state test, Mr. Billings told her to say no. Instead, Ms. Marks remained silent. The trial court suppressed Ms. Mark's refusal to take the test from evidence at trial. The trial court found that placing Mr. Billings in the back of the patrol car with Ms. Marks interfered with her decision to take the state test. The Court of Appeals reversed and said that the law does not require an officer to ensure that a DUI suspect be provided an environment free from a non-state actor's bad advice. Besides, she ignored Mr. Billings's advice anyway.

Implied Consent - Timeliness

Joiner v. State A99A1437; 1999 WL 600370 (August 11, 1999)

In a DUI/Vehicular Homicide case, defendant somehow (the facts contained in the opinion did not say how) ran over her husband's head with her truck. When the police arrived, defendant was extremely distraught. The police thought death was accidental and defendant was not charged with any crime at the scene. However, according to police, she was taken into custody because she was extremely distraught. (Why she was given her Miranda warnings at this point is unclear since Miranda rights only attach after an arrest.) Defendant was taken to the sheriff's department to be interviewed. She was read her implied consent rights (Mirandized again) and was asked to take a blood test. After submitting to the blood test, defendant was released without being booked and without posting bond. A few months later, defendant was arrested for DUI and first-degree vehicular homicide based upon the blood test results. Defendant contended that her implied consent notice was not given in a timely manner under OCGA § 40-6-392(a)(4). This particular code section requires that in a DUI case, for the test results to be admissible in court, the implied consent must be read "at the time of the arrest." The Court of Appeals said that the implied consent notice must be read at the time of the arrest only if a person is arrested for DUI. The Court said in this case, defendant clearly was not under arrest for DUI at the time the blood test was requested. The Court cited to two other sections in the Georgia Code (40-5-55 and 40-5-67.1) that say that someone involved in a traffic accident resulting in serious injuries or fatalities must submit to a chemical test. The Court further said that, although the implied consent notice must still be read, it only has to be read prior to the administration of the state test; "it is not required that the person be arrested prior to such testing."

Implied Consent - Misreading Did Not Change the Substance of the Notice

Maurer v. State A99A1460; 1999 WL 743502 (September 24, 1999)

Defendant sought to suppress the Intoxilyzer 5000 breath test results due to a misreading of the Implied Consent Notice. At trial, the officer testified that if defendant tested .01 grams or more rather than the correct .10 grams or more, defendant's license would be suspended (defendant was over 21 years of age). The Court of Appeals essentially held that an understatement of the legal limit would be an inducement for an accused to refuse testing. Conversely, an overstatement of the legal limit might lead a person to submit to the state test. In this case, since defendant did not refuse to take the test, the understatement did not change the substance of the Implied Consent Notice. [DUIGUY Note: If you are thoroughly confused, and if you think your notice was misread, contact me to analyze your situation.]

Implied Consent - Good Case Explaining Timeliness

State v. Becker A99A0980; 1999 WL 792270 (October 6, 1999)

Four persons were killed when a tractor-trailer forced their van off the road into oncoming traffic. A witness got the tag number of the tractor-trailer, which continued on leaving the scene. A trooper stopped the truck, but the circumstances of the stop are unknown. Another trooper was on the way to Turner County to escort the truck driven by defendant back to Tift County. The trooper met defendant and followed defendant the ten miles back to the Tifton patrol post. During this time, defendant did not drive erratically and did not seem impaired. Upon arrival, defendant did not smell of alcohol, did not have bloodshot eyes or slurred speech, and did not act unusually nervous. The trooper read the implied consent notice and asked for a urine sample at the post, which defendant provided. The trooper subsequently drove defendant to the hospital, reread the implied consent notice for commercial drivers and asked for a blood test, which defendant submitted to. Based on the results of the blood and urine tests, defendant was charged with DUI and Vehicular Homicide. He moved to suppress the test results on several grounds, and the trial court granted his motion. The State appealed. The first issue was whether or not the implied consent notice was read in a timely manner. Under the law, if a DUI arrest occurs, the notice must be read at the time of the arrest. If no DUI arrest occurs, but there is an accident with serious injury or fatality, the law requires that the test be administered as soon as possible. Furthermore, the notice must be given within a reasonable amount of time after the accident as determined by the circumstances. The Court of Appeals ruled that the evidence was insufficient for the trial court to determine whether or not the implied consent notice was read in a timely manner. The case was remanded back to the trial court to for further evidence to determine this issue.

A second issue in this same case is interesting in that the Court of Appeals has never ruled on it. Defendant's attorney argued that the implied consent notice for commercial drivers notified defendant that he would be disqualified from operating a commercial vehicle for one year if he refused the testing, but did not notify him that he would also be disqualified from operating a personal vehicle pursuant to OCGA § 40-5-153(c). The Court of Appeals said that defendant agreed to take the test after hearing that a refusal to take the test could result in a suspension of his commercial driver's license for a year. The Court reasoned that being told that he would also lose his personal driving privileges could only have tipped the balance further in favor of consenting. Therefore, the omission was immaterial.

Implied Consent - Citation to the Code Section is Enough

Cullingham v. State A99A2334; 2000 WL 122171 (February 2, 2000)

Defendant was convicted of having an unlawful blood alcohol level. At the non-jury trial, the officer testified, without reading the entire text of the implied consent notice, that he read the implied consent notice from 1997, that he read the notice for those 21 or over, and that he read it twice. During testimony, the officer recited a portion of the notice. On appeal, Defendant contended that, pursuant to Miller v. State, 238 Ga.App. 61 (1999), the implied consent notice was insufficient. In Miller, the officer merely said he read the notice contained on a card. Distinguishing Miller, the Court of Appeals said the facts in Cullingham were in compliance with the implied consent notice requirements.

Implied Consent - Refusal

Gallimore v. State A00A0195; 2000 WL 156302 (February 15, 2000)

Defendant was placed under arrest and advised of his implied consent rights. Defendant told the arresting officer that he would submit to the state test. Another officer transported defendant to the testing location. At the testing location, defendant apparently declined to take the test. The arresting officer was then called to the testing location where he signed a form verifying that defendant refused to submit to the blood test. The arresting officer did not hear defendant refuse to take the test. On appeal, defendant contended that there was insufficient evidence to determine whether or not he refused to submit to the state test. The Court of Appeals held that the arresting officer's testimony regarding his own conduct (presumably his signing the form verifying defendant's refusal) along with the officer's observations (I have no idea what those observations were) authorized the jury to find that defendant refused to take the state test. [DUIGUY COMMENT: I have no idea what the Court of Appeals is trying to say. I can only assume that defendant wanted any mention of the refusal suppressed from evidence since evidence of a refusal allows the prosecutor to argue that the reason defendant refused was because he knew the test would show the presence of alcohol or prohibited substance. This would not be a jury issue, but a legal issue to be decided by the trial judge. If the judge decided that there was no probative evidence regarding refusal, then the prosecutor would not be allowed to argue the refusal as substantive evidence. Furthermore, the trial court would not be able to give a jury charge regarding the refusal. The Court of Appeals did not address this aspect of the case. Perhaps the lawyer did not raise this issue on appeal. The Court of Appeals only address the issue of whether or not the jury was authorized to find that defendant refused to take the test.]

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