Georgia State University Law Review
Volume 23 . Issue 1 Fafl 2006 Artlcle 18
3-21-2012
MOTOR VEHICLE AND TRAFFIC Operating While Under the Influence: Provide a Comprehensive Revision, Modernization, and Reform of the Laws of this State Relating to Operating Motor Vehicles While Under the Influence ofAlcohol, Drugs, or Other Substances; to Provide for Implied Consent to Chemical Testing; to Provide Definitions; to Provide for the Adoption of Such Laws by Ordinance by Political Subdivisions; to Provide for the Discretion of the Court to Accept Certain Pleas; to Provide for the Publication of the Photographs and Fact of Conviction for Certain Offenders; to Amend
Recommended Citation
Georgia State University Law Review (2006) "MOTOR VEHICLE AND TRAFFIC Operating While Under the Influence: Provide a Comprehensive Revision, Modernization, and Reform of the Laws of this State Relating to Operating Motor Vehicles While Under the Influence of Alcohol, Drugs, or Other Substances; to Provide for Implied Consent to Chemical Testing; to Provide Definitions; to Provide for the Adoption of Such Laws by Ordinance by Political Subdivisions; to Provide for the Discretion of the Court to Accept Certain Pleas; to Provide for the Publication of the Photographs and Fact of Conviction for Certain Offenders; to Amend Various Provisions of the Official Code of Georgia Annotated, so as to Conform Such Provisions to the Provisions of this Act; to Provide for the Applicability and Effect of this Act; to Provide for the Applicability and Effect of this Act; to Provide an Effective date; to Repeal Conflicting Laws; and for Other Purposes," Georgia State University Law Review: Vol. 23: Iss. 1, Article 18. Available at: http://digitalarchive.gsu.edu/gsulr/vol23/iss1/18
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Various Provisions of the Official Code of Georgia Annotated; so as to Conform Such Provisions to the Provisions of this Act; to Provide for the Applicability and Effect of this Act; to Provide for the Applicability and Effect of this Act; to Provide an Effective date; to Repeal Conflicting Laws; and for Other Purposes
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MOTOR VEHICLES AND TRAFFIC
Operating While Under the Influence: Provide a Comprehensive Revision, Modernization, and Reform of the Laws of This State Relating to Operating Motor Vehicles While Under the Influence of Alcohol, Drugs, or Other Substances; to Provide for Implied Consent to Chemical Testing; to Provide Definitions; to Provide
for the Adoption of Such Laws by Ordinance by Political Subdivisions; to Provide for the Discretion of the Court to Accept Certain Pleas; to Provide for the Publication of the Photographs and Fact of Conviction for Certain Offenders; to Amend Various
Provisions of the Official Code of Georgia Annotated, so as to Conform Such Provisions to the Provisions of this Act; to Provide for the Applicability and Effect of this Act; to Provide an Effective date; to Repeal Conflicting Laws; and for Other Purposes
Code Sections:
Bill Number: Summary:
O.C.G.A. § 6-2-5.1 (amended); 12-3315 (amended); 15-11-66 (amended); 15-21-112, 149 (amended); 16-10-51 (amended); 17-6-1, 2 (amended); 1710-3.1 (amended); 17-15-7, 8, 10 (amended); 20-2-984.2 (amended); 339-43 (amended); 40-1-8 (new); 40-2136 (amended); 40-5-1, 2, 24, 52, 55, 57.1, 58, 62, 63, 63.1, 64, 66, 67, 69, 75, 85, 142, 148.1, 151, 152, 153 (amended); 40-5-67.1, 67.2 (repealed); 40-6-3, 291, 391, 392, 393, 393.1, 394 (amended); 40-6-391.2 to -391.3 (repealed); 40-6-410 to -25 (new); 424-7 (amended), 42-8-34, 111, 112 (amended); 50-5-200 to -210 (new) SB 502
The bill proposed the consolidation of existing DUI laws in Georgia and the addition of new sections to the Georgia Code that would address perceived ambiguities caused by recent Georgia
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court decisions. Specifically, the bill was intended to facilitate the collection of admissible evidence by law enforcement officers in DUI cases. For example, the bill proposed the availability of implied consent chemical testing where there is "probable cause" to believe that a suspect is operating a motor vehicle while under the influence of alcohol, drugs, or other substances in certain circumstances. Further, the bill would have allowed for the admissibility of chemical test results where the defendant driver did not consent to the testing, but a valid warrant was obtained. Additionally, the bill would have allowed for the admissibility of chemical test results where the law enforcement officer misread or failed to read portions of the implied consent notice.
History
The current DUI laws in Georgia span multiple titles and sections of the Georgia Code.1 Georgia's implied consent provisions in its DUI laws were at the forefront of the proposed legislation in the 2006 term.2 The history of the DUI laws in Georgia and recent court cases interpreting the existing law shed light on the reasons for the proposal of Senate Bill 502.3
1. See, e.g., O.C.G.A. §§ 6-2-5.1 (2005); 15-21-112 (2005); 17-10-3.1 (2005); 40-5-52 (2005).
2. See SB 502, as passed by the Senate, 2006 Ga. Gen. Assem.; HB 1222, as introduced, 2006 Ga. Gen. Assem.
3. See 1968 Ga. Laws 448; O.C.G.A. §§ 40-5-55, -67.1 (2005).
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Schmerber v. California*
In 1966, the United States Supreme Court held that a police officer can forcibly take blood from a suspect, so long as the officer has probable cause to believe that a suspect has committed the criminal offense of driving an automobile while intoxicated.5 In the case of Schmerber v. California, the petitioner was arrested while he was at a hospital seeking treatment for injuries suffered in a car accident.6 At the direction of a police officer, a hospital physician withdrew a sample of his blood.7 The report of his blood alcohol percentage was admitted at trial, and he was convicted.8 The petitioner objected to the admissibility of the report, claiming that it violated his Fourth Amendment right to be free of unreasonable searches and seizures.9
The Court first noted that a suspect's Fourth Amendment right to be free of unreasonable searches and seizures applies to the compelled withdrawal of blood.10 The Court then asked whether the police were justified in requiring petitioner to submit to the test, and whether the means and procedures employed in taking petitioner's blood were reasonable. 1 Finding the ends justified (there was probable cause to suspect petitioner of a criminal violation) and the means reasonable (the attempt to secure evidence was an appropriate incident to his arrest), the Court concluded that no violation had taken place.12
Implied Consent Laws
In the wake of this decision, Georgia adopted "implied consent" laws to minimize the risk of violent confrontations between police, medical personnel, and suspected impaired drivers.13 These laws
4. Schmerber v. California, 384 U.S. 757 (1966).
5. Id. at 767-68.
6. Id. at 758.
7. Id.
8. Id. at 759.
9. Id.
10. Schmerber, 384 U.S. at 767.
11. A/, at 768.
12. Id. at 768-72.
13. See 1968 Ga. Laws 448; Adam Ferrell, Rodriguez v. State: Addressing Georgia's Implied Consent Requirements for Non-English-Speaking Drivers, 54 MERCER L. REV. 1253, 1257 (2003)
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provide for consequences such as license suspension if the driver refuses to consent to testing, and the laws provide for the admission into evidence of the fact that the driver refused testing.14 In Georgia, a defendant's refusal to submit to testing gives rise to an inference that a test would have shown the presence of a prohibited substance.15 An often-cited section of Georgia's implied consent laws reads:
[A]ny person who operates a motor vehicle upon the highways or elsewhere throughout this state shall be deemed to have given consent, subject to Code Section 40-6-392, to a chemical test or tests of his or her blood, breath, urine, or other bodily substances for the purpose of determining the presence of alcohol or any other drug, if arrested for any offense arising out of acts alleged to have been committed in violation of Code Section 40-6-391 or if such person is involved in any traffic accident resulting in serious injuries or fatalities.16
Several recent cases have called into question the meaning and application of these laws.17
to
Cooper v. State
In 2003, the Georgia Supreme Court held a portion of Georgia's implied consent law unconstitutional.19 In August of 2000, two drivers were involved in a head-on collision in Barrow County, Georgia. The trooper investigating the scene discovered that one driver had suffered a broken arm and, pursuant to Georgia law, administered a blood test to both drivers. 1 The trooper was acting
(stating that Georgia's original implied consent laws have changed very little since first introduced in 1968).
14. See Ferrell, supra note 13, at 1257.
15. See Kelly v. State, 528 S.E.2d 812 (Ga. Ct. App. 2000).
16. O.C.G.A. § 40-5-55 (2005).
17. See Audio Recording of Senate Proceedings, Feb. 23,2006 (remarks by Sen. William Hamrick), http://www.georgia.gov/00/article/0^086,4802_6107103_47120055,00.html, [hereinafter Senate Audio].
18. Cooper v. State, 587 S.E.2d 605 (Ga. 2003).
19. Id. at 607.
20. Id.
21. Id. at 607-08.
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under Code section 40-5-55, which dictates that a person involved in any traffic accident resulting in serious injuries or fatalities has, by operation of law, given consent to chemical testing.22 One of the drivers, Carey Don Cooper, tested positive for cocaine, and was convicted for...
