In a major change to Georgia DUI law, the Georgia Supreme Court recently decided that, when a person is charged with DUI after having been read an “implied consent” notice by the arresting officer, the trial court must determine whether the officer’s request for a breath, blood, or urine sample from the driver complies with the protections afforded by the Fourth Amendment.

In the case of Williams v. State, the Supreme Court distinguished between implied consent under OCGA § 40-5-55 – which has been considered, for a long time, to be the only type of consent required in a Georgia DUI case to collect a blood, breath, or urine sample – and true, voluntary consent, which is required to allow a warrantless search in any criminal case other than a DUI case. Now, the judge of the Georgia criminal court in which a DUI case is tried must decide whether actual – not “implied” – consent was given by the driver for the collection of a blood, breath, or urine sample from that driver.

Under the former law, determination of whether a driver gave “implied” consent involved consideration of only whether the driver says “yes” or “no” to only one question, the officer’s question of whether the driver would “submit” to implied consent. However, under the law after the Williams decision, determination of whether a driver gave “actual” consent involves consideration by the judge of many factors, which are legally called “the totality of the circumstances”. Now, in order for the results of a blood, breath, or urine test of an alleged DUI driver to be admissible in court, the trial court must determine whether the driver voluntarily consented to a test of that driver’s blood, breath, or urine, and the voluntariness of that consent is determined by all circumstances, including potential roadside pressure – or “coercion” – by the arresting officer.

In actual practice, though, “consent” is not – and has not been – requested of Georgia drivers. Instead, under the current Georgia implied consent system, drivers are asked, “[w]ill you submit to the state administered chemical tests of your [blood, breath, or urine] under the implied consent law?” But, of course, the commonly-understood meaning of “to submit” does not connote a voluntary acceptance but, rather, as Oxford Dictionary sets forth, “to accept or yield to a superior force or to the authority or will of another person” or “to stop trying to fight or resist something; to agree to do or accept something that you have been resisting or opposing”. Given that meaning, then, the language within the Georgia implied consent notice, that “Georgia law requires you to submit to tests of your blood, breath, urine…” is, at best, misleading and, more likely, just a lie. In fact, Georgia has no law that requires a person to submit to such a test.

In light of the Williams decision, a criminal defense attorney who does not raise issues, in a DUI case, relating to submission of their client’s blood, breath, or urine test in that client’s DUI case, is seriously failing to represent that client’s interests effectively. Since the Georgia Supreme Court held, in Williams, the language of the Georgia Implied Consent Warning is itself insufficient to guarantee that a person is submitting to a test voluntarily, there must be more than just proof of the warning itself to show that a person made a reasonable, free, uncoerced, voluntary, and intelligent decision regarding submission of a test of that person’s blood, breath, or urine.

We, here at the Berelc Law Office, are here to navigate you through the difficult – and often turbulent – waters of the laws associated with being charged with DUI in the State of Georgia. We are intimately familiar with the court systems – including the law enforcement officials, prosecutors, clerks of court, and other court officials – in courts throughout all areas of Northeast Georgia. We would be happy to assist you through the very stressful process of addressing your DUI case.

CategoryCriminal Law
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