In the Supreme Court of Georgia
Decided: March 27, 2015
S14A1625. WILLIAMS v. THE STATE.
HINES, Presiding Justice.
Following a bench trial, John Cletus Williams was convicted of driving
under the influence of drugs (“DUI”), OCGA § 40-6-391 (a) (2), and failure to
maintain lane, OCGA § 40-6-48 (1).1 He had moved unsuccessfully to suppress
the results of a state-administered blood test2 on the basis that the test, obtained
without a search warrant, violated his rights under the Fourth Amendment to the
United States Constitution and Article I, Section I, Paragraph XIII of the
Georgia Constitution.3 His challenge is that Georgia’s implied consent statute,
OCGA § 40-5-55,4 is unconstitutional as applied in his case because consent
1
Williams was given two consecutive misdemeanor sentences.
2
The motion also requested the suppression of “in-custody questioning.”
3
The motion to suppress also alleged violation of the Fifth Amendment to the United States
Constitution, but this ground was later withdrawn.
4
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
obtained solely under the statute does not amount to voluntary consent for
purposes of the Fourth Amendment and the related provision of the State
Constitution.5 For the reasons which follow, we vacate the judgments of the
state court and remand the case to that court for reconsideration of Williams’s
motion to suppress and any consequent proceedings.
The transcript of the hearing of the motion to suppress and the
immediately following bench trial reveal the following facts, which were either
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 or if such
person is involved in any traffic accident resulting in serious injuries or fatalities. The test
or tests shall be administered at the request of a law enforcement officer having reasonable
grounds to believe that the person has been driving or was in actual physical control of a
moving motor vehicle upon the highways or elsewhere throughout this state in violation of
Code Section 40-6-391. The test or tests shall be administered as soon as possible to any
person who operates a motor vehicle upon the highways or elsewhere throughout this state
who is involved in any traffic accident resulting in serious injuries or fatalities. Subject to
Code Section 40-6-392, the requesting law enforcement officer shall designate which of the
test or tests shall be administered, provided a blood test with drug screen may be
administered to any person operating a motor vehicle involved in a traffic accident resulting
in serious injuries or fatalities.
5
Ga. Const. of 1983, Art. I, Sec. I, Par. XIII contains the same language as the guarantee in
the Fourth Amendment to the United States Constitution that there is, “[t]he right of the people to
be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.”
This Court has held that Paragraph XIII is applied in accord with the Fourth Amendment in the
context of such guarantee. Brown v. State, 293 Ga. 787, 791 (n.6) (750 SE2d 148) (2013).
2
stipulated at trial or are not in dispute. On September 22, 2012, Williams was
arrested by an officer of the Gwinnett County Police Department and charged
with DUI and failure to maintain lane; the officer had “reasonable articulable
suspicion” to stop Williams and probable cause to arrest him. Williams was
placed in custody but was not advised of his Miranda6 rights. The officer read
Williams the age-appropriate statutory implied consent notice7 and pursuant to
it requested that Williams submit to blood and urine tests. The officer told
Williams that it was “a yes or no question,” and Williams verbally responded
“yes.” There was no other conversation about consent for the testing, i.e., the
officer did not ask Williams “if [Williams] was willing to freely and voluntarily
6
Miranda v. Arizona, 384 U.S. 436 (86 SCt 1602, 16 LE2d 694) (1966),
7
The applicable implied consent notice for suspects age 21 or over is found in OCGA §
40-5-67.1 (b) (2), and states:
“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. If you refuse this testing, your Georgia driver's license or
privilege to drive on the highways of this state will be suspended for a minimum period of
one year. Your refusal to submit to the required testing may be offered into evidence against
you at trial. If you submit to testing and the results indicate an alcohol concentration of 0.08
grams or more, your Georgia driver's license or privilege to drive on the highways of this
state may be suspended for a minimum period of one year. After first submitting to the
required state tests, you are entitled to additional chemical tests of your blood, breath, urine,
or other bodily substances at your own expense and from qualified personnel of your own
choosing. Will you submit to the state administered chemical tests of your (designate which
tests) under the implied consent law?”
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give a test.” The officer “read [Williams] the implied consent and that was pretty
much the end of it.” It “was an ordinary DUI,” there “were no exigent
circumstances,” and no search warrant was obtained. Williams was taken to a
medical center where blood and urine samples were taken for the purpose of his
criminal prosecution.
The state court denied Williams’s motion to suppress his blood test,8
expressly rejecting the “reasoning” that statutory implied consent implicated
Fourth Amendment concerns, and the contention that the statutory consent, in
and of itself, was not a valid exception to the Fourth Amendment’s requirement
of a search warrant. The state court’s analysis is flawed.
A suspect’s right under the Fourth Amendment to be free of unreasonable
searches and seizures applies to the compelled withdrawal of blood, and the
extraction of blood is a search within the meaning of the Georgia Constitution.
Cooper v. State, 277 Ga. 282, 285 (III) (587 SE2d 605) (2003). 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
8
Neither Williams’s constitutional challenge in his motion to suppress or his arguments on
appeal address his given urine sample, but only the blood test and its results.
4
per se unreasonable under the Fourth Amendment, subject only to a few
specifically established and well-delineated exceptions. State v. Slaughter, 252
Ga. 435, 436 (315 SE2d 865) (1984), citing Coolidge v. New Hampshire, 403
U.S. 443, 454–455 (91 SCt. 2022, 29 LE2d 564) (1971). Thus, a warrantless
search is presumed to be invalid and the State has the burden of showing
otherwise. State v. Slaughter, supra, citing Mincey v. Arizona, 437 U.S. 385,
390–391 (98 SCt 2408, 57 LE2d 290) (1978), and McDonald v. United States,
335 U.S. 451, 456 (69 SCt 191, 93 LEd 153) (1948).
The first well-recognized exception to the warrant requirement in the
context of a state-administered blood test is the presence of exigent
circumstances. The United States Supreme Court in Schmerber v. California,
384 U.S. 757 (86 SCt 1826, 16 LE2d 908) (1966), addressed the Fourth
Amendment implications of a warrantless blood draw in a DUI case. The
Supreme Court stated it was to determine “whether the police were justified in
requiring [the petitioner in that case] to submit to the blood test, and whether the
means and procedures employed in taking his blood respected relevant Fourth
Amendment standards of reasonableness.” 384 U.S. at 768. T h e
Schmerber court acknowledged that “[w]hile early cases suggest[ed] that there
5
is an unrestricted ‘right on the part of the government . . . to search the person
of the accused when legally arrested, to discover and seize the fruits or
evidences of crime,’” the “mere fact of a lawful arrest” did not end the inquiry.
Id. at 769. This was so because such suggestion was premised on the possibility
of “more immediate danger of concealed weapons or of destruction of evidence
under the direct control of the accused,” and because once there was a permitted
weapons search of the arrested person it would be “both impractical and
unnecessary” to achieve the purpose of the Fourth Amendment “to attempt to
confine the search to those objects alone.” Id. However, the Court concluded
that such considerations had “little applicability with respect to searches
involving intrusions beyond the body's surface,” and that “[t]he interests in
human dignity and privacy which the Fourth Amendment protects forbid any
such intrusions on the mere chance that desired evidence might be obtained.” Id.
at 669, 670. Accordingly, “[i]n the absence of a clear indication that in fact such
evidence will be found, these fundamental human interests require law officers
to suffer the risk that such evidence may disappear unless there is an immediate
search.” Id. at 770. The Court reasoned that inasmuch as “[s]earch warrants are
ordinarily required for searches of dwellings,” there could not be a lesser
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requirement in the instance of “intrusions into the human body,” but noted this
was so “absent an emergency.” Id. It then concluded that the officer in the case
might reasonably have believed that there was an emergency, in the sense that
the delay involved in obtaining a search warrant threatened the destruction of
evidence, the threat and exigent circumstance being the diminishment of the
concentration of alcohol in the blood shortly after the cessation of drinking as
the body eliminates it from the system. Id. Also noting that in that case, time
was taken to bring the accused to a hospital and to investigate the accident
scene, the Court concluded there was no time to secure a warrant, and given the
“special facts,” the blood draw “was an appropriate incident to petitioner's
arrest.” Id. at 771. Thus, Schmerber established the legal nexus between the
transient and dissipating nature of an intoxicant in the human body and presence
of an exigency for the purpose of securing a blood test without the necessity of
a search warrant.
This Court carried such nexus further in Strong v. State, 231 Ga. 514 (202
SE2d 428) (1973), when it determined that in the situation in which there is
probable cause to arrest an individual for DUI, the “evanescent nature of alcohol
in the blood,” in and of itself, necessitated that the defendant’s blood sample be
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extracted in order “to prevent a failure of justice from a certain disappearance
of this evidence.” Id. at 518. In other words, the dissipation of the intoxicant in
the body automatically, as a matter of law, provided the exigency for a
warrantless blood test incident to the arrest. However, prior to the bench trial
and the denial of the motion to suppress in Williams’s case, the United States
Supreme Court issued its decision in Missouri v. McNeely, 569 U. S. ___ (133
SCt 1552, 185 LE2d 696) (2013), in which it rejected a per se rule that the
natural metabolization of alcohol in a person’s bloodstream constitutes an
exigency justifying an exception to the Fourth Amendment's search warrant
requirement for nonconsensual blood testing in all DUI cases. 569 U. S. ___
(133 SCt at 1556). Instead, it concluded that,
while the natural dissipation of alcohol in the blood may support a
finding of exigency in a specific case, as it did in Schmerber, it does
not do so categorically. Whether a warrantless blood test of a
drunk-driving suspect is reasonable must be determined case by
case based on the totality of the circumstances.
Id. at 1563. Thus, to the extent that Strong v. State holds otherwise, it is hereby
overruled. In the present case, there is no dispute that there were no exigent
circumstances. Consequently, the analysis in this case must then focus on the
voluntary consent exception to the warrant requirement because it is well settled
8
in the context of a DUI blood draw that a valid consent to a search eliminates the
need for either probable cause or a search warrant. Cooper v. State, supra at 291
(VI), citing Schneckloth v. Bustamonte, 412 U.S. 218, 219 (93 SCt. 2041, 36
LE2d 854) (1973).
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.” Cooper v. State, supra
at 291 (VI), citing, inter alia, Bumper v. North Carolina, 391 U.S. 543 (88 SCt
1788, 20 LE2d 797) (1968).9 And, it can certainly be argued that the need for
9
In Cornwell v. State, 283 Ga. 247 (657 SE2d 195) (2008), this Court stated that inasmuch
as there was probable cause for Cornwell’s arrest for DUI and the State had complied with statutory
implied consent requirements, Cornwell could not complain that the state-administered urine test for
the presence of alcohol and drugs violated his State and Federal Constitutional rights to be free from
unreasonable searches and seizures; therefore, his motion to suppress was properly denied. Id. at 249
9
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, McNeely, 569 U. S. ___ (133 SCt at
1557); 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. Id. at 1563.
Nevertheless, sister states have considered statutory implied consent as an
exception to the Fourth Amendment’s warrant requirement in the wake of
McNeely, and have reached varying conclusions as to whether McNeely governs
that issue; but, what the cases seem to indicate is that mere compliance with
(2). However, such statement was in direct response to Cornwell’s argument that the implied
consent statute was unconstitutionally applied to him because it permitted warrantless compelled
testing of his bodily fluids without proof of the existence of exigent circumstances. Our
determination, in no manner, intended to blur the distinction between implied consent and actual
consent for the purpose of Fourth Amendment analysis.
10
statutory implied consent requirements does not, per se, equate to actual, and
therefore voluntary, consent on the part of the suspect so as to be an exception
to the constitutional mandate of a warrant. See, e.g., People v. Harris, ---
Cal.Rptr.3d ----, 2015 WL 708606 (Cal.App. 4 Dist., 2015); Weems v. State, 434
S.W.3d 655 (Tex. App., 2014); State v. Padley, 354 Wis.2d 545 (849 NW2d
867) (Wis.App.,2014); State v. Moore, 354 Or. 493(318 P3d 1133) (Or.,2013);
State v. Brooks, 838 N.W.2d 563 (Minn.,2013). See also, Cooper v. State, supra
at 291 (VI).
As the Wisconsin Court of Appeals aptly observed in Padley,
“Implied consent” is not an intuitive or plainly descriptive term
with respect to how the implied consent law works. . . [it may be]
a source of confusion. . . . the term “implied consent” [may be] used
inappropriately to refer to the consent a driver gives to a blood draw
at the time a law enforcement officer requires that driver to decide
whether to give consent. However, actual consent to a blood draw
is not “implied consent,” but rather a possible result of requiring the
driver to choose whether to consent under the implied consent law.
State v. Padley at 564.
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
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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.
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