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1/31/2014
Georgia Eliminates DUI Refusal Loophole
Georgia Court of Appeals rules that forced blood draws can by performed, with a warrant, when a breath test is refused.

Judge Sara L. DoyleThe Georgia Court of Appeals last week confirmed that police can conduct a forced blood test on a suspected drunk driver if a judge issues a search warrant, deciding that the state legislature had overruled the 2006 state Supreme Court decision on the topic.

Daniel J. McAllister was driving his white Cadillac on March 30, 2012, when he ran into a roadblock set up by the Cherokee County Sheriff's office just after 10:30 pm. Deputy George Rose decided McAllister was suspicious because the Cadillac's left turn blinker was active. He also noted it was out-of-the-ordinary that McAllister asked what was going on while he was being stopped in the middle of the road, that he had to pause before answering questions and that McAllister fumbled while retrieving his license from his wallet.

Slurred speech and a smell of alcohol set up McAllister for roadside sobriety tests, which he failed. He was taken to jail where he refused a breath test. A warrant was brought to a local judge who was on standby to sign the order. Deputies brought McAllister to a hospital where his blood was drawn and tested at 0.12 blood alcohol content. On trial for driving under the influence of alcohol, McAllister relied on no less an authority than the 2005 Georgia Supreme Court case Georgia v. Collier.

"The consequences of refusing the requested testing are the possibility of admission of such refusal at a criminal trial as well as suspension of the driver's license," the high court ruled. "These legislatively-created sanctions do not include being compelled to submit to testing through the use of a search warrant. Otherwise, the right of refusal under the implied consent law would be rendered meaningless. The prohibition against forced testing is not altered by the fact that the investigating officer might have the probable cause necessary to support the issuance of a search warrant."

The text of the implied consent law states that "no test shall be given" after an individual accepts the punishment that automatically comes with refusing the test. The case, however, was far from a slam dunk. In 2006, state lawmakers inserted a provision into the law specifying that evidence could be acquired with a search warrant. McAllister countered that this provision made the "no test" provision meaningless. The appellate judges disagreed.

"Practically speaking, the language to which McAllister points also is not meaningless simply because the state may now apply for a warrant to perform the test because it is only a possibility, and in the face of a refusal the officer must be able to present sufficient evidence of probable cause to a magistrate in order to obtain a warrant for the test," Judge Sara L. Doyle wrote for the court. "Thus, if the officer does not have sufficient cause to obtain the warrant, then no warrant could be issued and such a test will not be authorized."

The court on procedural grounds refused to consider McAllister's argument that he was deprived on due process because the deputy in his explanation of the implied consent law did not mention that a forced blood draw would be performed anyway. The court upheld McAllister's conviction for driving under the influence of alcohol (DUI).

A copy of the decision is available in a 65k PDF file at the source link below.

Source: PDF File McAllister v. Georgia (Court of Appeals, State of Georgia, 1/22/2014)



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