Blood Tests

Involuntary Blood Test in Georgia DUI is Illegal - Brief of Georgia DUI Attorney by

Allen M. Trapp, Jr.
P.O. Box 2206     Georgia Bar No. 715535
Carrollton, Ga. 30112
(770) 830-8560

www.topgn-lawyer.com

 IN THE SUPREME COURT
 STATE OF GEORGIA
STATE OF GEORGIA
Appellant                            
                                   
   v.                                   Case No. S04G1409
       
STEVEN WILLIAM COLLIER
Appellee

________________________________________________________________________

       BRIEF OF APPELLEE

________________________________________________________________________

    Attorney for Appellee:

    Allen M. Trapp, Jr. 
    Georgia Bar No. 715535
    P.O. Box 2206      
    Carrollton, Ga. 30112         
    (770) 830-8560     

    IN THE SUPREME COURT
        STATE OF GEORGIA

STATE OF GEORGIA
Appellant

v.       Case No. S04G1409

STEVEN WILLIAM COLLIER
Appellee

       BRIEF OF APPELLEE

              I.
         ISSUE PRESENTED

 Does the State have the right to seek a search warrant to compel a person to submit to blood and urine samples for drug testing when that person has invoked his right under the implied consent law to refuse such testing?

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      II.
      STATEMENT OF FACTS
 On September 13, 1999, the Appellant was driving his pickup truck southbound on U.S. Highway 27, or Park Street, in Carrollton, Georgia, when he failed to stop at a red light.  In the ensuing collision both Inez Billingsley and Angelo Sykes were killed.
When police arrived at the scene they initially believed a passenger in Appellant's truck
had been driving and read the Implied Consent Warning to her, at which time the Defendant tried to leave the scene.  (T. 102).  After the Appellant was requested to submit to a blood and urine test, he initially refused, but after he was told that the police would
 obtain a search warrant and use a catheter to get it, he reluctantly consented.  (M.T. 19).  Blood and urine had already been obtained from the passenger, Ms. Moehrke, after a search warrant had been obtained.  (M.T. 19).  Furthermore, Ms. Moehrke was restrained so the police could obtain a blood sample.  The Appellant's blood and urine that were
submitted to the Division of Forensic Sciences revealed the presence of both amphet-amine and methamphetamine.
 One of the officers on the scene confirmed that they would have obtained blood and urine, absent field sobriety tests or other evidence of impairment, simply because it was required by state law.  (T. 119).  Kerry Steed, the officer who interviewed the Defendant at the police station stated that he saw no sign the Appellant was impaired.  (T. 162), and the description of the Appellant at the accident scene by Officer Brian Doss is inconsistent with amphetamine or methamphetamine impairment.  (T. 166-168).  In other 
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words, neither he nor Kerry Steed described the Appellee as being "pepped up" or anything of the nature.  Neither the constitutionality of O.C.G.A. 40-5-55 insofar as it purported to authorize chemical testing in the absence of probable cause nor the existence of probable cause for testing in this case were considered by trial court prior to the Appellee's trial because the issues were not raised by trial counsel.

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            III.
  ARGUMENT AND CITATION OF AUTHORITY 
 The state does not have the authority to seek a search warrant to compel a person to submit blood and urine samples for drug testing when that person has invoked his right under the implied consent law to refuse such testing.
 When construing a statute our courts look first to the words of the statute to determine the intent of the legislature, and if those words are plain and unambiguous, the courts need look no further in determining what that intent was.  Early v. Early, 269 Ga. 415, 416 (1998).  Furthermore, "where the language of an Act is plain and unequivocal, judicial construction is not only unnecessary but is forbidden."  City of Jesup v. Bennett, 226 Ga. 606, 609 (1970).  Absent highly unusual circumstances, words have their ordinary and customary meanings.
 The pertinent statute, O.C.G.A. 40-5-67.1(d), provides, in part, "If a person under arrest...refuses, upon the request of a law enforcement officer, to submit to a chemical test designated by the law enforcement officer as provided in subsection (a) of this Code section, no test shall be given...."  Therefore, the right to refuse is embodied in just five words: no test shall be given.  The effect of the word "shall" in the statute precludes any discretion on the part of an officer to give a test after the driver has refused.  Indeed, this Court has recently reaffirmed the long-standing rule that, " Shall' is generally construed as a word of command."  Mead v. Sheffield, 278 Ga. 268, 269 (2004) (citing O'Donnell v. Durham, 275 Ga. 860, 861 (2002)).  This particular statute includes a command that
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 something shall not be done, and the command is clear and unequivocal.
 Our appellate courts have made it abundantly clear that under the statute a driver 
does have an absolute right to refuse a state administered test.  E.g., Klink v. State, 272 Ga. 605 (2000); State v. Leviner, 213 Ga. App. 99 (1994).  "The legislature grants the right and determines its nature."  Allen v. State, 254 Ga. 433, 434 (1985).  "In Georgia, the State may constitutionally take a blood sample from a defendant without his consent.  Our Implied Consent Statute' thus grants a suspect an opportunity, not afforded him by our constitution, to refuse to take a blood-alcohol test.  The statute grants, rather than denies, a right to a defendant."  Keenan v. State, 263 Ga. 569, 570 (1993).  Not only does a suspect have the right to refuse a state administered chemical test, but the police must inform the suspect of his right to refuse.  Fantasia v. State, 268 Ga. 512, 513 (1997).
 As Judge Blackburn wrote for the Court of Appeals, "The consequence of exercising this right is that the evidence of such refusal is admissible in the driver's criminal trial and that the State may suspend the person's driver's license.  Leviner, supra.
Contrary to the police's representation to Collier, the consequence of refusing is not that the police may then obtain a search warrant and forcibly conduct the tests.  Otherwise, the right to refuse such tests would be ephemeral at best."  Collier v. State, 266 Ga. App. 762, 764 (2004).  In other words, the legislature has granted motorists a right of refusal, but that "right" would be meaningless if the police could simply disregard it and obtain a search warrant.  That, indeed, would be an absurd result and contrary to the rule of statutory construction that when faced with a legislative "shall", the courts must give effect to the legislative prescription and lack the authority to carve out exceptions. 
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 Therefore, it is abundantly clear that under the applicable Georgia statutes the
chemical tests should have been suppressed and ruled inadmissible, but the issue was not addressed by trial counsel.  (M.T. 10).  Had the test results been excluded, it is virtually inconceivable that the Defendant could have been convicted of driving under the influence of drugs, much less the felony vehicular homicide offenses predicated upon a showing that he was driving while under the influence of drugs.  Such omission on the part of trial counsel was in no way based on strategic considerations (M.T. 11) and was, therefore, solely attributable to trial counsel's ineffective assistance. 
 In interpreting its implied consent statute with wording almost identical to ours ("...the tests shall not be given....") the Supreme Court of West Virginia held that it was plain error for a police officer to inform the defendant that a search warrant could be used to obtain his blood.  State v. McClead, 211 W. Va. 515, 566 S.E. 2d 652 (2002).  As with the Georgia statute at issue in the instant case, the West Virginia implied consent law did not provide statutory authority for a police officer to obtain a warrant to extract blood from a DUI arrestee.  Therefore, the plain and unequivocal language of the statute afforded an arrestee the right to refuse and did not authorize the use of a search warrant to
render that right illusory.
 The Supreme Court of Rhode Island reached the same result in a vehicular homicide case.  Relying on the proposition that when a statute is clear and unambiguous, there is no room for statutory interpretation and the language of the statute must be given its plain and literal meaning, the Court observed that, "Only when the legislature sounds an uncertain trumpet may the court move in to clarify the call."  State v. DiStefano, 764 A.
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2d 1156, 1160 (2000).  The precise language in the Rhode Island statute ("none shall be given") is virtually identical to that found in O.C.G.A. 40-5-67.1 (d), and the Court held that the clear language of the statute evinced the intent of the General Assembly that consent to a test is the lynch pin of admissibility.  Id. at 1163. 
 West Virginia and Rhode Island are not alone.  In State v. Bellino, 390 A. 2d 1014 (Me. 1978), the Supreme Judicial Court of Maine reached the same result, as did New Hampshire's Supreme Court in State v. Berry, 121 N.H. 324, 428 A. 2d 1250 (1981).  These statutes were subsequently amended to require testing under limited circumstances if a driver is involved in an accident causing death or serious injury; however, they stand for the proposition that Georgia's implied consent statute should be interpreted in the manner urged by the Appellee.  This result is consistent with the case law interpreting statutes providing that "no test shall given" in every state, except Missouri, that has come to attention of the undersigned.  E.g., Loscomb v. State, 45 Md. App. 598, 416 A. 2d 1276 (1980); State v. Steele, 93 N.M. 470, 601 P. 2d 440 (N.M. App. 1979); Pena v. State, 684 P. 2d 864 (Alaska 1984); Collins v. Superior Court, 158 Ariz. 145, 761 P. 2d 1049 (1988); State v. Hitchens, 294 N.W. 2d 686 (Iowa 1980).  Although some of the implied consent
statutes interpreted by these decisions have been amended since these decisions were rendered, they still recognize the long-standing principle that blood test evidence obtained in violation of statutory implied consent procedures is subject to suppression if the legislature does not otherwise so provide.  This is also the case with implied consent statutes employing language somewhat different from Georgia's.  E.g., State v. Moylett, 313 Or. 540, 836 P. 2d 1329 (1992).  Furthermore, even in those states with implied
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consent statutes distinguishing between the right to refuse in misdemeanor DUI cases and the lack of an absolute right in felony cases, their case law also supports the proposition that the right to refuse, when granted by the legislature, is a real right.  E.g., Combs v. Commonwealth, 965 S.W. 2d 161 (Ky. 1998). 
 The Appellant's brief mistakenly asserts that, "In the wake of Schmerber, implied consent was created."  Perhaps the most comprehensive history of the evolution of implied consent statutes issued by any court is the sweeping review conducted by the Supreme Court of Oregon in State v. Newton, 291 Or. 788, 636 P. 2d 393 (1980).  Implied consent statutes were initially a reaction to case law, particularly Rochin v. California, 342 U.S. 165 (1952), which held that the warrantless extraction of morphine capsules from a man's stomach offended "those canons of decency and fairness which express the notions of justice of English-speaking peoples" embodied in the due process clause of the Fourteenth Amendment.  At the time many thought the decision would bar the forcible invasion of the body for seizure of evidence as violative of due process.  Beginning with New York, the states reacted to Rochin by enacting implied consent statutes.  In the meantime, some of the assumptions upon which the implied consent statutes were based were eroding.
In Breithaupt v. Abram, 352 U.S. 432 (1957), the Supreme Court held that a blood sample taken from an unconscious driver was constitutionally obtained even though the person's body had been invaded without consent.  Absent the coercion or brutality found in Rochin, the 5-4 majority held that such a test did not shock the conscience.
 By 1962 implied consent was adopted as part of Uniform Vehicle Code, and more and more states adopted implied consent laws in the ensuing decade.  However,
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Schmerber v. California, 384 U.S. 757 (1966), removed any remaining doubt that consent, either implied or actual, was necessary in order to obtain a blood sample that would be admissible provide that probable cause justifies a search.  In other words, at the same time that the states were adopting implied consent statutes pell-mell, the rationale for the statutes arguably evaporated.
 "Arguably" is the appropriate characterization because there is no tension between the implied consent statutes and the Supreme Court's ruling in Schmerber, which established the outer parameters for police initiated invasions of an individual's body.  Any attempt to use physical restraint to take a blood sample is subject to Fourth Amendment limitations on the reasonableness of searches and seizures and must comply with due process requirements.  After all, the Schmerber court noted that the integrity of an individual's person is a cherished value of this society, and permitting minor intrusions under very limited circumstances in no way means that more substantial intrusions under different circumstances are permitted.  In other words, when the state threatens a driver with a search warrant and physical restraint, heightened judicial scrutiny is appropriate.
 The implied consent statute strikes the appropriate balance between the public's
interest in safe highways and an individual driver's interest in personal integrity and the avoidance of distasteful invasions of his/her body.  Consent is implied by all who drive upon our highways, but that consent may be withdrawn.  Hernandez v. State, 238 Ga. App. 796 (1999).  In order to encourage drivers to submit to state administered tests, the implied consent statute employs the "stick" of license suspension, while holding out the carrot of passing the test and maintaining driving privileges.  The implied consent statute is indeed
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designed to encourage motorists to submit to state administered tests, but in an orderly, peaceful, non-confrontational manner.  
   The state contends that consent is not a prerequisite to the admissibility of chemical test results in impaired driving prosecutions.  Considered solely from the constitutional perspective, the State is correct, provided probable cause for a search exists.  The Defendant concedes that the Georgia constitution does not protect him from compelled blood testing nor the use of those test results at trial to any greater degree than the Fourth Amendment.  Allen v. State, 254 Ga. 433 (1985).  The same is true of breath testing.  Green v.State, 260 Ga. 625 (1990).  However, the right to refuse to submit to state administered testing is not a constitutional right, but one created by the legislature.  E.g.. Klink; Fantasia; Keenan.
  The state can cite but one persuasive precedent, State v. Smith, 134 S.W. 3d 35 (Mo. App. 2003), in support of its position that the language "no test shall be given" only applies to warrantless arrests.  There are at least three flaws in the Smith decision. 
 First, another Missouri statute, Section 542.271 RSMo (2000), generally authorizes the issuance of a search warrant for the withdrawal of blood samples to determine the presence of alcohol in the blood.  Second, the decision rests on a rather peculiar interprettion
of the statute - that the use of the "passive voice" in the clause "none shall be given" does not specify who is prohibited from giving a test.  Therefore, said the court, it must apply to law enforcement officers seeking a warrantless search.   The result is not explained in a cogent, convincing manner and should be rejected by this court.  The third flaw in the court's analysis is intertwined with the second.  If the clause "none shall be
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given" is directed to law enforcement officers, the court should have explained how this prohibition actually empowers them to obtain search warrants.  Furthermore, since search warrants are directed to law enforcement officers, the court's analysis overlooks how they can enforce a search warrant authorizing a search for something they are prohibited from procuring - a test.  Significantly, the Missouri decision does not cite a single case interpreting the implied consent laws of other states.  It is alone in its misguided application of the language at issue in this case and should be disregarded by this court as an oddity - a single poorly reasoned decision in conflict with every other state appellate court ruling that has interpreted the language.
 The state also relies on Beeman v. State, 86 S.W. 3d 613 (Tx. Crim. App. 2002).
Without engaging in much that can be characterized as thoughtful examination of the history of the implied consent statutes, the Texas court did ignore statutory language that appeared to prohibit taking a specimen without actual consent.  However, the language in the Texas statute is quite different from Georgia's implied consent statute and those of other states that have held "no test shall be given" or "none shall be given" means what it says.  Furthermore, in Beeman the appellant seemed to rely on the argument that, because section 724.012 of the Texas Transportation Code permitted a non-consensual blood draw
in the case of an accident or serious injury, by implication the taking of blood without consent in other situations should be prohibited.  The majority opinion fails to discuss Section 724.013, which most assuredly appears to prohibit a non-consensual blood draw.  The reason for their silence is unknown to the undersigned, who can only surmise that counsel for the accused simply did not make the argument.
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 The state has also cited State v. Zielke, 137 Wis. 2d 39, 403 N.W. 2d 427 (1987).
Once again, the statute considered in Zielke is not substantially similar to Georgia's, and
the Wisconsin court condoned the police practice of circumventing the implied consent statute at will.  However, the court acknowledged that its opinion neither considered nor decided the implications of forcible testing at the hands of the police, despite a defendant's refusal, which is the precise scenario this Court is considering.
 The Appellee agrees with the Appellant that it would be beneficial for this Court to closely examine Brown v. State, 774 N.E. 2d 1001 (Ind. App. 2002).  In declining the appellant's invitation to disapprove the use of search warrants in the face of a refusal, the court explained that, although the appellant had brought a plethora of case law to the court's attention, "...each of the implied consent laws interpreted by the decisions Brown cites either currently or at one time specifically provided that when a driver refuses to consent to a chemical test, no test shall be given."  Id. at 1007.  In other words, if the Indiana statute had contained the language found in the Georgia implied consent law, the result would have different, and the use of a search warrant in the face of a refusal would have been disapproved.
 Defendant had an absolute right under the Implied Consent Law to refuse testing,
and he was supplied with misleading information in order to obtain his coerced consent.  In this case the police initially suspected that another individual, a Ms. Moehrke, was the driver of the vehicle involved in the accident.  After she was read the Implied Consent Warning codified at O.C.G.A. 40-5-67.1, she refused to submit to a test.  (M.T. 19).  Law enforcement officers then obtained a search warrant, and she was physically restrained and
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 forced to submit to a blood test.  (M.T. 19).
 Similarly, after the police decided that Mr. Collier was a suspect, an officer
read the Implied Consent Warning to him, and he initially refused.  He was then told that they would obtain a search warrant and employ a catheter if necessary.  After being so advised, Mr. Collier submitted to the officers' show of authority.  (M.T. 19).  A "consent search" which is the product of a threat to obtain a search warrant if consent is not given is not a voluntary consent.  Murphy v. State, 230 Ga. App. 365 (1998).  Consent obtained as a result of a threat to obtain a warrant if consent is not given is simply submission to a show of authority and does not constitute valid consent.  State v. Hall, 229 Ga. App. 194 (1997).  Furthermore, when an officer represents to an accused that a warrant to search will be obtained if consent is refused, and does not have probable cause to secure the warrant, then the accused's consent is invalid.  Darby v. State, 216 Ga. App. 781 (1995). 
Therefore, even if there was no Implied Consent statute, the blood test results in this case should have been suppressed.
 Nevertheless, we are dealing with the Implied Consent statute, and it is abundantly clear that under the statute the chemical tests should have been suppressed and ruled inadmissible.  The legislative command - no test shall be given - is clear and susceptible of but one interpretation.  The State has offered no cogent and compelling argument for its theory that this language prohibits the police from conducting only warrantless tests, and this Court should not seek to carve out an exception but should simply give effect to the legislative prescription.

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         CONCLUSION
 Based on the foregoing discussion, the Appellee urges this Court to hold unambiguously that the state does not have the authority to seek a search warrant to compel a person to submit blood and urine samples for drug testing when that person has invoked his right under the implied consent law to refuse such testing.
 Respectfully submitted this the __________ day of ________________, 2004.

      __________________________
      Allen M. Trapp, Jr.
P.O. Box 2206     Georgia Bar No. 715535
Carrollton, Ga. 30112
(770) 830-8560

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    CERTIFICATE OF SERVICE
 This is to certify that I have this day served a copy of the foregoing Brief of Appellant upon the District Attorney of Carroll County and the Prosecuting Attorneys' Council by depositing a copy of same in the United States mail with sufficient postage affixed thereto to ensure delivery addressed as follows:
District Attorney of Carroll County
Attention: Anne Cobb Allen
209 Courtyard Square
Carrollton, Ga. 30117

Gary D. Bergman
Prosecuting Attorneys' Council of Georgia
Drug Prosecutions Division
104 Marietta St., NW, Suite 400
Atlanta, Ga. 30303-2743

 This the _______ day of ______________, 2004.

     _____________________
     Allen M. Trapp, Jr.
P.O. Box 2206    Georgia Bar No. 715535
Carrollton, Ga. 30112
770/830-8560

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