Last month, the United States Supreme Court struck down a Missouri law that allowed officers to conduct warrantless blood tests on suspected DUI drivers.
This decision will have little if any impact on Georgia DUI law because our state has already taken measures to address the central issue in the Missouri case. The concern that prosecutors in Missouri had was that in DUI cases, there was an immediate need to obtain evidence of a suspect’s blood alcohol level if he or she refused to give a blood sample because alcohol dissipates as time passes.
However, the Court ruled in Missouri v. McNeely that the metabolization of alcohol in blood alone does not present an urgent need that would justify an exemption to the Fourth Amendment requirement for warrants to draw suspects’ blood without their consent.
We do not have that problem in Georgia. But, it is worth taking a look at why we don’t.
Beginning in 2001, Georgia law has allowed officers under some circumstances to procure search warrants for blood samples by teleconferences with judges when impaired driving suspects won’t consent to blood tests.
The Georgia General Assembly approved an addition to the law this year, making obtaining warrants even easier. House Bill 146 would allow judges to issue search warrants by videoconference, such as Skype, regardless of the judges’ physical locations.
Some people believe that you can simply and absolutely refuse a test in Georgia under the Implied Consent statute. The Implied Consent statute provides for a notice that officers are required to give drivers who are suspected of driving under the influence of drugs or alcohol when the officer is requesting a sample. The implied consent notice is often read from a small card at the scene of the traffic stop. It basically says that the officer is requesting a sample of your blood, breath, or other bodily fluid. If you refuse to provide a sample, your privilege to drive in Georgia can be suspended.
However, just because a driver refuses a state’s administered test, he or she may have their bodily fluid tested anyway under subsection (d.1.) of the Implied Consent statute. This is because Georgia drivers lost the absolute right to refuse testing back in 2006 when the General Assembly amended the Implied Consent statute to give law enforcement the authority to seek a warrant for blood, breath or urine testing.
This part of the Implied Consent statutory provision specifically states:
d. 1. – Nothing in this Code section shall be deemed to preclude the acquisition or admission of evidence of a violation of Code Section 40-6-391 if obtained by voluntary consent or a search warrant as authorized by the Constitution or laws of this state or the United States.
Code Section 40-6-391 refers to Georgia’s DUI statute.
Here is the bottom line. In Georgia, a driver can refuse a chemical test or take the test. But, if the officer believes that he or she has enough evidence to establish probable cause that the driver is impaired, the officer can obtain a search warrant for the driver’s blood.
Some counties use this law enforcement tool with regularity while other counties do not. I have found that the counties that routinely obtain search warrants in DUI cases have easy and readily available judges to issue the warrants.
While Missouri v. McNeely will not have a material effect on Georgia DUI practice and procedure, it certainly illuminates the boundaries that our General Assembly and courts have drawn for our police officers and citizens.