Defendant was convicted, following a bench trial in
the trial court, of driving under the influence of drugs
(DUI) and failure to maintain lane. He appealed.
In general, searches are of two types: those
conducted with a search warrant or those undertaken
without one, and searches conducted outside the
judicial process are per se unreasonable under the
Fourth Amendment, subject only to a few specifically
established and well-delineated exceptions.
A well-recognized exception to the warrant
requirement in the context of a state-administered
blood test is the presence of exigent circumstances.
In the context of a blood draw on a charge of driving
under the influence of alcohol (DUI), a valid consent
to a search eliminates the need for either probable
cause or a search warrant.
Natural metabolization of alcohol in a person's
bloodstream does not per se constitute an exigency
justifying an exception to the Fourth Amendment's
search warrant requirement for nonconsensual blood
testing in driving under the influence ( DUI) cases;
overruling Strong v. State, 231 Ga. 514, 202 SE2d 428
Mere compliance with statutory implied consent
requirements for state-administered blood test
following arrest for driving under the influence of
drugs ( DUI) did not, per se, equate to actual, and
therefore voluntary, consent on part of suspect so as
to fall within exception to constitutional mandate of
search warrant.
When relying on the consent exception to the
warrant requirement for state-administered blood
testing, the state has the burden of proving that the
accused acted freely and voluntarily under the
totality of the circumstances.
As noted, it is uncontroverted that Williams submitted to
the blood test after the police officer read him the
implied consent notice for suspects age 21 or over.
However, in Cooper v. State, supra, this Court plainly
distinguished compliance with the implied consent
statute from the constitutional question of whether a
suspect gave actual consent for the state-administered
testing. We emphasized such remaining question in
regard to the validity of the consent, confirming that
“[w]hen relying on the consent exception to the warrant
requirement, the State has the burden of proving that the
accused acted freely and voluntarily under the totality of
the circumstances.”
And, it can certainly be argued that the need for the
State to demonstrate actual consent for the purpose
of exception to the warrant requirement and its
constitutional implications is reinforced by the
analysis of the United States Supreme Court in
McNeely…
The facts of McNeely did not lend themselves to the
Supreme Court expressly addressing the issue of a
suspect's consent to the testing of bodily fluids as
satisfying Fourth Amendment concerns because the
defendant in that case refused to consent to a blood
test…
…however, a plurality of the Court was plainly rejecting a
per se rule for sustaining an exception to the Fourth
Amendment's requirement of a search warrant in favor of
a case-by-case assessment based on the totality of the
circumstances, albeit in the narrow context of exigency…
OCGA § 40–5–55 provides in relevant part:
(a) The State of Georgia considers that any person who
drives or is in actual physical control of any moving
vehicle in violation of any provision of Code Section 40–
6–391 constitutes a direct and immediate threat to the
welfare and safety of the general public….
Therefore, any 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…
In considering Williams's motion to suppress, the state
court failed to address whether Williams gave actual
consent to the procuring and testing of his blood, which
would require the determination of the voluntariness of
the consent under the totality of the circumstances.
Consequently, the judgments of the state court are
vacated and the case is remanded to that court for
proceedings consistent with this opinion.
Judgments vacated and case remanded with direction.
All the Justices concur.
First, it is important for officers to consider what
Williams DOES NOT mean. Simply put, Williams did
not : (1) invalidate Georgia’s Implied Consent
statutes; (2) overrule any existing case law
concerning Implied Consent; (3) authorize officers
to stop giving the Implied Consent warning to DUI
suspects; (4) hold that the Implied Consent notice is
inherently threatening or coercive; or (5) hold that
submission to testing after the Implied Consent
warning is read cannot be “actual consent” for
purposes of the Fourth Amendment.
Properly understood, Williams simply clarified that
officers in the field must do two things to obtain consent
to state-administered chemical testing: (1) observe the
requirements of the Implied Consent statute, and (2)
ensure that suspects consenting to chemical testing do so
freely, voluntarily, and without unconstitutional coercion.
As illustrated by several of the cases cited by Williams (see
People v. Harris, 234 Cal. App. 4th 671 (Cal. App. 4th Dist.
2015); State v. Padley, 354 Wis.2d 545 (Wis. App. 2014);
State v. Moore, 354 Ore. 493 (Ore. 2013); and State v.
Brooks, 838 N.W.2d 563 (Minn. 2013)), this is not as
difficult as it first sounds. In fact, few—if any—changes to
existing law enforcement prac-tices are necessary.
However, Williams DOES require officers to pay more
attention to the circumstances and conditions under which a
suspect consents to testing. This is because Williams, like
other cases involving the Fourth Amendment, requires judges
to consider the “totality of the circumstances” within which a
DUI suspect agrees to be tested in order to determine
whether they did so freely, voluntarily, and without
improperly coercive police procedures. Officers who carefully
in-corporate the details of those circumstances into their
reports (and record a suspect’s consent, where possible) will
put their prosecutors in the best position to establish the
voluntariness of the defendant’s consent.
Williams requires trial courts to determine whether a
suspect’s consent to chemical testing was given
freely and voluntarily as required by the Fourth
Amendment. This determination is made based upon
“the totality of the circumstances,” which includes
the circumstances under which consent was given,
the characteristics of the defendant, and the nature
of the conversation between the suspect and officers
(i.e., what was said and how it was said).
Furthermore, voluntary consent cannot exist where
there is coercion by threats or by force, or where it is
given only in submission to a claim of lawful
authority.
Therefore, DUI incident reports should include
detailed accounts of the events leading up to a
suspect’s decision to allow state-administered
chemical testing of their bodily substances. In
particular, officers should record occurrences—
regardless of how minor they might seem—that
demonstrate that when Implied Consent was read,
the suspect’s decision to consent resulted from:
(1) an environment that allowed free choice; (2)
the suspect’s ability to make a meaningful choice; (3)
an exchange with police that was as polite and calm
as the situation permitted; (4) the officer’s provision
of accurate information to the suspect; and (5) the
absence of improper and/or coercive police practices
designed to overcome the suspect’s resistance.
Officers who articulate such details will allow judges
to find “actual consent.”
Officers should keep in mind that the
decision to seek a search warrant should
be based upon the evidence in the case,
and not because a suspect chose not to
consent. Under no circumstances should
an officer use his or her ability to apply for
a warrant as a means to influence a
suspect’s decision.
Finally, law enforcement agencies should, in
conjunction with their elected prosecutor,
formulate a plan for those cases where a
suspect’s ability to give actual consent is
questionable, such as when a suspect is
unconscious or does not speak English.
Generally, in such cases, officers should either
forego a sample, seek a warrant, or—IN VERY
RARE CASES—consider whether exi-gent
circumstances permit collection of a sample
without a warrant.