Georgia Supreme Court Holds that Implied Consent Is Not Actual Consent

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Prosecuting impaired drivers in Georgia just got a little bit harder. The Georgia Supreme Court held last week in Williams v. State, __ S.E.2d __ (Ga. 2015) that the mere fact that a DUI suspect agreed to allow officers to withdraw his blood–after being told that Georgia law required him to submit to testing and that his driver’s license would be revoked for a year if he refused–did not establish the sort of voluntary consent necessary to excuse the Fourth Amendment’s warrant requirement. Is this a watershed moment in implied consent law?

First, the facts. Williams was arrested for driving under the influence. The officer read Williams a statutory implied consent notice and asked that Williams submit to blood and urine tests. The officer told Williams that it was a “‘a yes or no question’”, and Williams said “yes.” Williams was then taken to a medical center where his blood was withdrawn and a urine sample obtained.

The issue. Williams moved to suppress the results of the blood test on the basis that gathering the blood without a search warrant violated his Fourth Amendment rights.  He argued that Georgia’s implied consent statute was unconstitutional because consent obtained solely under the statute was not voluntary consent for purposes of the Fourth Amendment.  The trial court rejected his argument.  Williams appealed.

The opinion. The Georgia Supreme Court’s analysis is straightforward. The extraction of a defendant’s blood at the direction of a law enforcement officer is a search governed by the reasonableness requirement of the Fourth Amendment. In general, there are two types of Fourth Amendment searches:  those with a warrant and those without.  For a warrantless search to be reasonable under the Fourth Amendment, the State must demonstrate that it falls within an established exception to the warrant requirement.

The exception relied upon by the State in Williams was voluntary consent. But the fact that a suspect agrees to be tested after being read the statutory implied consent notice does not establish that he gave actual consent to the extraction of his blood. Instead, when relying on the consent exception to the warrant requirement, the State must prove that the defendant acted freely and voluntarily under the totality of the circumstances.

The Williams court determined that the trial court failed to address whether Williams gave actual consent to the procuring and testing of his blood, and remanded the case for such a determination.

A big change.  Despite the Georgia Supreme Court’s insistence to the contrary, Williams marked a significant departure from its earlier jurisprudence in this area. Indeed, as recently as 2003, the court reiterated its view that “the Georgia Constitution does not protect citizens from compelled blood or breath testing or from the use of the results of the compelled testing at trial” and that the state’s implied consent laws “grants a suspect an opportunity, not afforded him by our constitution, to refuse to take a blood-alcohol test.” Cooper v. State, 587 S.E.2d 605, 611 (2003) (internal citations omitted). Yet there is good reason for the court to have reconsidered its view. Williams noted that the United States Supreme Court in Missouri v. McNeely, 133 S.Ct. 1552 (2013), rejected a per se rule for establishing an exigency exception to the Fourth Amendment’s warrant requirement, instead requiring a case-by-case assessment based on the totality of the circumstances. Williams extended that approach to the warrant requirement’s consent exception.

What have other states said? 

Williams noted that other state courts have concluded post-McNeely that that statutory implied consent does not equate to actual consent.  While technically true, the tenor of the analysis in many such cases is markedly different.  In two of the opinions relied upon by Williams, the state courts readily concluded that the defendant freely and voluntarily submitted to testing and that consent was not coerced by being informed of the consequences of refusal.

 

  • People v. Harris, 184 Cal. Rptr. 3d 198, 213 (2015) (“That the motorist is forced to choose between submitting to the chemical test and facing serious consequences for refusing to submit, pursuant to the implied consent law, does not in itself render the motorist’s submission to be coerced or otherwise invalid for purposes of the Fourth Amendment.”)

 

  • State v. Moore, 354 Or. 493, 501, 318 P.3d 1133, 1137 (2013) (“[W]e conclude that defendant expressly and voluntarily consented when [the officer] asked him to submit to the tests and that he was not coerced by the statement of rights and consequences that [the officer] read to him before seeking consent.”)

 

A third case cited by Williams concludes that agreeing to testing after being advised of the state’s implied consent law is actual consent.

 

  • State v. Padley, 849 N.W.2d 867, 879 (2014) (concluding that “[c]hoosing the ‘yes’ option affirms the driver’s implied consent and constitutes actual consent for the blood draw” and stating that “[n]owhere does [the defendant] develop a legal argument that the State cannot present a suspect with the hard choice of giving up a constitutional right or accepting a permissible penalty”)

 

One court not cited in Williams has, however, analyzed the issue in much the same way as the Georgia court.  The Arizona Supreme Court in State v. Butler, 302 P.3d 609 (Ariz. 2013) (en banc) (discussed here), held that, independent of the state’s implied consent law, the Fourth Amendment requires an arrestee’s consent to be voluntary to justify a warrantless blood draw.

Significance. What happens on remand certainly is important. If the trial court determines that the defendant voluntarily consented based on the bare facts recounted by the supreme court, and that decision is upheld, the distinction between acquiescence under the state’s implied consent laws and actual consent may turn out to have little practical import. If, on the other hand, the trial court determines that Williams’ consent was not freely and voluntarily given, the state may have to alter its enforcement protocol.

Yet Williams is significant even without regard to what else occurs in the case. The Georgia Supreme Court accepted the crux of the defendant’s argument, holding that implied consent is not actual consent, based in part on the United States Supreme Court’s opinion in McNeely.  If the divide among state courts regarding the relationship between the Fourth Amendment and implied consent testing continues to grow, the high court may again be called upon to weigh in on the routine procedures utilized in the prosecution of impaired driving.

14 comments on “Georgia Supreme Court Holds that Implied Consent Is Not Actual Consent

  1. Although it may be splitting hairs, in the context of implied consent the issue is not whether the driver consents to a chemical analysis at the time the request is made by law enforcement. That consent was given when they drove on the road. Once arrested, the issue is neither giving consent nor refusal, but WITHDRAWAL of consent. The issue of voluntariness has already been foreclosed. No one forced them to drive, and their end of the legal and social contract, when they decide to drive, is to submit to chemical analysis when there is a basis for an officer to make that request.

    • Then if this is the case there should be zero tolerance, not some imaginary line enforced by a machine a man can not possibly question in a court of law as per article 6 of the Bill of rights.

      All technology can be manipulated. Testing is not done by a third party impartial company. It is done by a police officer working to generate income for his corporate employer, any and all results are suspect due to conflict of interest.

      There should be no place to drink outside the home. If it’s about safety this would eliminate all human determinatios. No place to drink socially, end of most drunk driving. Zero tolerance would be much safer but That would ultimately remove a huge money making machine for the STATE of…

      A reading on a machine Does Not Determine the ability of a man to operate his personal property.

  2. So, had the arresting officer in this case explicitly informed the suspect that the testing to be conducted was going to be a blood test, and had he stated a refusal would have resulted in his license being suspended would this hold up?

    As it stands now, most testing done in NC is breath, and it’s explained to arrestees that a refusal will result in their license being suspended. To me this is no different than an officer having probable cause for a warrant, but still asking consent and informing the people that without consent they will get a warrant. This is common practice, and has not been considered coercive to the courts since probable cause DID exist for the warrant. It has only been considered coercive when false, and PC was not there to gain a warrant and it was a tactic used to get around a lack of PC and establish a search.

    In that regard, it seems that if a suspect has been arrested and PC exist for the arrest, then obviously PC is there for a warrant, and asking consent and informing them that refusal of consent results in another state agency revoking a license doesn’t seem to be coercive, necessarily. I guess basically I’m wondering if this had been a breath test rather than blood, would there be an issue, since breath is not invasive?

    • I think you’re still taking a sample to be tested. Blood, breath or urine a sample is a sample.

    • You have the right not to incriminate yourself. Article 5, bill of rights.

      You also have a right to travel. No corporation can take those rights. A license can not be issued for something that is Unlawful, so it is already lawful to travel. A license is commercial and a man is not operating or driving under a license while traveling in his personal property. We have all been brainwashed into believing a man must be issued a STATE of… license to travel in our horse less carriage.

      The definition of a Motor Vehicle is a vehicle used to transport passengers or cargo for hire.

      A Unilateral contract with DMV is not a lawful contact as a man is not aware of all the particulars within. Signing a piece of plastic does not invalidate the God given rights of man

      Man created government and is now being exploited by it. “Sheeple”

  3. […] admit that I may have a problem. I am dedicated to (perhaps obsessed with) the pursuit of a legal theory that satisfactorily squares the doctrine of implied consent with the […]

  4. The Williams ruling has less to do with any waiver made with the State’s Department of driving, and more to do with the absolute non negotiable right to privacy.

    We need only look at how DUI (per se) laws and DUI (less safe) laws are written to conclude that due process is violated at the on set of a pretextual traffic stop.

    The stop is used to create unlawful leverage and draw an implied consent warning.

    • Officers are corporate empoyees, working to generate a profit the the corporation “The STATE of… using any means possible. All complaints filed on behalf of the STATE of… without a damaged party are in direct violation of their oath to protect the rights of the people.

      Pretextual stops are unlawful but they do it all the time, creating a conflict of interest, fabricating probable cause, lying on police reports, filing false complaints. Crime = Harm. The STATE of… can not be a Victim it is a fictional entity on paper. The plaintiff, a damages party, or a third party impartial witness must appear to testify under oath or affirmation.

      DUI “Laws” are not about the ability of a man to operate a vehicle safely, they are about generating money for the STATE of…

  5. I’m sure that some of the prior comments were not made by criminal defense attorneys, but it is pretty clear that any attempt to have a citizen preemptively consent to a search is not a knowing and intelligent waiver of the 4th amendment right to insist upon a warrant. Early in the “Williams” litigation, trial judges were continually suggesting that the preemptive waiver by obtaining a driver’s license was a viable theory. They have all abandoned that theory now.

  6. In Arizona, for the past 6+ years, I’ve argued this exact thing: Implied consent is an administrative process to suspend a drunk’s driver’s license, but it does not comport with the Fourth Amendment.

    On January 1, 2016, the Arizona Department of Transportation modified its “admin per se” warning by removing the words: “Arizona law requires you to submit….”

    But while the Department thinks they fixed the problem, it didn’t. Inducement, no matter how slight, renders any request for evidence in a criminal case suspect.

    Currently, I’m waiting for the Arizona Supreme Court’s ruling on two matters argued on December 8, 2015, on this exact issue.

    Georgia’s Supreme Court’s ruling, I pray, bodes well for things to come in Arizona.

    • In a follow-up with my February 7, 2016, post, the Arizona Supreme Court found that the words “Arizona law requires you to submit” to be coercive, but that the officer had “good faith” to believe he was doing the right thing, so the evidence could be used against the defendant.

      The rulings are State v. Valenzuela, CR 15-0222-PR (Ariz. 4-26-2016).

      In the parallel case, the Arizona Supreme Court reversed a boating-under-the-influence offense because it found “Arizona law” offensive. Both cases were briefed and filed by me.

  7. No government entity should be allowed to make a law that requires a US citizen to give up a Constitutional protected right against illegal search and seizures including driving a car.

    What’s next? Will we allow states to pass laws that force us to voluntary give up our 1st or 5th amendment right to purchase, own, or to carry a gun?

    • Any statute, corporate code, that is in direct conflict with the Constitution is void.

      The problem isn’t with the STATE (corporation) of… passing “statutes” (codification of the Law) it’s about people standing together against the injustice of taking our rights to generate money for Corrupt Officials. A man has no remedy when all the ACTING parties work on behalf of the STATE of…

  8. […] follows implied consent warnings. But see Williams v. State, 771 S.E.2d 373 (Ga. 2015) (discussed here, holding that impaired driving suspect’s agreement to allow officers to withdraw his […]

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