In 2013, the Supreme Court of the United States changed the landscape of DUI law throughout the entire country with its decision in Missouri v. McNeely, 133 S.Ct. 1552 (2013). For the first time ever, the Supreme Court held that a DUI suspect has a constitutional right to refuse State-administered chemical testing. Prior to this decision, Georgia DUI law provided a DUI suspect with a statutory, but not constitutional, right to refuse State-administered chemical testing of a suspect’s blood, breath, urine or other bodily substance. On March 27, 2015, the Supreme Court of Georgia adopted the holding of McNeely when deciding Williams v. State, 296 Ga. 817 (2015), and reversed a long line of cases that interpreted our Georgia DUI laws. As a result of the Williams decision, the prosecution in a Georgia DUI case is now required to prove that any consent to State-administered chemical testing is not merely a submission to police authority, but rather a knowing and voluntary decision that is sufficient to satisfy the safeguards of the Fourth Amendment (the right to be free from unreasonable search and seizure). Without proof of knowing and voluntary consent, the resulting blood, breath, or urine tests are inadmissible at trial. This presents a very difficult burden for the prosecution to overcome and could result in the exclusion of State-administered chemical tests in many Georgia cases.
In Georgia, the DUI statutes require that the officer read an implied consent warning to a DUI suspect and ask the suspect to submit to a State-administered chemical test. The implied consent warning is inherently coercive and, in the wake of the McNeely and Williams decisions, prosecutors will have a difficult job to prove that consent was voluntary for the purpose of satisfying the Fourth Amendment. The warning begins by indicating that, “Georgia law requires you to submit to State-administered chemical tests of your blood, breath, urine, or other bodily substances for the purpose of determining if you are under the influence of alcohol or drugs.” The warning also threatens the DUI suspect with a one-year license suspension if they refuse to submit to testing. Once a person is told that Georgia law requires that person to submit to a State-administered chemical test, it is difficult, if not impossible, to conclude that the person is knowingly and voluntarily consenting to the State test. In addition, the warning never uses the words “voluntary” or “consent.” The Georgia implied consent warning asks if the person will “submit” to the test. The legal definition of “submit” is to yield to the authority of another. Yielding to the authority of another is clearly not the same as voluntarily consenting to a test as required by McNeely and Williams. The ultimate issue that the prosecutor must prove for the resulting blood, breath and urine tests to be admissible is that the person knowingly and voluntarily consented to the test(s), but that person is never asked to voluntarily consent to the test(s). Based on McNeely and Williams, Georgia courts are required to make a determination of voluntariness on a case by case basis so this issue is far from simple.
The requisite voluntariness created by the decisions in McNeely and Williams provides an extremely important DUI defense that, if properly raised, should result in most State-administered chemical tests being suppressed so that the jury is never aware that a test existed. The law firm of Thomas, Webb and Willis has been on the forefront of developing and litigating the McNeely/Williams defense in Georgia. For a free consultation please call 404-250-1113.
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