Bailey v. the State

WHOLE COURT

NOTICE: Motions for reconsideration must be
physically received in our clerk’s office within ten
days of the date of decision to be deemed timely filed.
http://www.gaappeals.us/rules

July 13, 2016

In the Court of Appeals of Georgia
A16A0200. BAILEY v. THE STATE.

PHIPPS, Presiding Judge.

Elmer Lamar Bailey was with his cousin when the vehicle they were traveling

in crossed the center line of a highway, struck an embankment, and overturned.

Bailey, who appeared to be the driver of the vehicle, was trapped in the car and

seriously injured. After an ambulance took Bailey to the hospital, an investigating

officer found a box containing drugs next to the overturned vehicle. As a result,

Bailey was charged with possession of methamphetamine,1 possession of marijuana,2

and possession of drug-related objects.3

1
OCGA § 16-13-30 (a).
2
OCGA § 16-13-30 (j) (1).
3
OCGA § 16-13-32.2.
 Bailey was unconscious when a state trooper arrived at the hospital. The state

trooper ordered hospital staff to obtain samples of Bailey’s blood and urine for drug

and alcohol testing. Based on the results of those tests and on the accident itself,

Bailey was also charged with DUI (per se),4 DUI (less safe) (combined influence),5

and failure to maintain lane.6 The trial court denied Bailey’s motion to suppress the

results of the blood and urine tests. After a jury found him guilty of all counts, the

trial court entered a judgment of conviction, merging the two DUI counts for

purposes of sentencing. The court denied his motion for new trial, and Bailey appeals.

Because Bailey does not raise any issues with respect to his convictions for

possession of the drugs and drug-related materials found next to the car or for failure

to maintain lane, we do not address those convictions. We reverse the trial court’s

order denying Bailey’s motion to suppress, reverse the DUI (per se) conviction, and

vacate the DUI (less safe) guilty verdict based on the United States Supreme Court’s

4
OCGA § 40-6-391. According to the indictment, Bailey drove while there was
methamphetamine present in his blood and urine.
5
OCGA § 40-6-391 (a) (4). Specifically, the State charged that Bailey was
under the combined influence of amphetamine, methamphetamine, morphine and
hydrocodone to the extent it was less safe for him to drive.
6
OCGA § 40-6-48.

2
opinion in McNeely v. Missouri7 and the Supreme Court of Georgia’s decision in

Williams v. State.8

Bailey argues on appeal that the trial court should have suppressed his blood

and urine test results because the State did not comply with the implied consent

statute and because he was unconscious at the time of testing and unable to give

actual consent. We review the trial court’s factual findings in a ruling on a motion to

suppress for clear error, but we owe no deference to the trial court’s application of the

law to undisputed facts.9

In his motion to suppress, Bailey argued that the seizure of samples of his

blood and urine was conducted in the absence of a warrant or an exception to the

warrant requirement and in violation of the Fourth Amendment and the Georgia

Constitution. At the suppression hearing, the State presented testimony from Deputy

Beard of the Franklin County Sheriff’s Office, who responded to the scene of the one-

car accident, and then-Trooper Roberts of the Georgia State Patrol, who ordered

samples taken of Bailey’s blood and urine at the hospital.

7
___ US ___ (133 SCt 1552, 185 LEd2d 696) (2013).
8
296 Ga. 817 (771 SE2d 373) (2015).
9
State v. Gauthier, 326 Ga. App. 473, 473-474 (756 SE2d 705) (2014).

3
 The trial court denied the motion to suppress, finding that Bailey’s bodily

fluids were collected as a result of a traffic accident resulting in serious injuries, as

defined by OCGA § 40-5-55 (c). The trial court concluded that “in conjunction with

a finding of probable cause of the offense of D.U.I. by the investigating officer,

[Trooper Roberts] was legally authorized to collect blood and urine from [Bailey]

without first placing [Bailey] under arrest per the holding of Snyder v. State.”10

1. Bailey argues that the State did not comply with Georgia’s Implied Consent

statute because he was not advised of his rights and given an opportunity to refuse

testing, as required by the implied consent notice.

OCGA § 40-5-67.1 contains the following language regarding the reading of

the implied consent notice:

At the time a chemical test or tests are requested, the arresting officer
shall select and read to the person the appropriate implied consent notice
from the following: (1) Implied consent notice for suspects under age
21: . . . (2) Implied consent notice for suspects age 21 or over: . . . (3)
Implied consent notice for commercial motor vehicle driver suspects:
. . . If any such notice is used by a law enforcement officer to advise a
person of his or her rights regarding the administration of chemical
testing, such person shall be deemed to have been properly advised of

10
283 Ga. 211 (657 SE2d 834) (2008).

4
 his or her rights . . . . Such notice shall be read in its entirety but need
not be read exactly so long as the substance of the notice remains
unchanged.11

While this statute provides no exception for the reading of the implied consent notice,

Section 40-5-67.1 must be construed in conjunction with OCGA § 40-5-55.12

Under subsection (a) of OCGA § 40-5-55, “any person who operates a motor

vehicle . . . shall be deemed to have given consent . . . to a chemical test or tests of his

. . . bodily substances for the purpose of determining the presence of alcohol or any

other drug, if arrested [for DUI] or if such person is involved in any traffic accident

resulting in serious injuries or fatalities.”13 Subsection (b) adds that any person who

is unconscious shall not be deemed to have withdrawn the consent provided by

subsection (a).14 A “‘traffic accident resulting in serious injuries or fatalities’ means

11
OCGA § 40-5-67.1 (b) (emphasis supplied).
12
Snyder, supra at 214 (finding the two statutes to be in pari materia, i.e.,
relating to the same subject matter, and that they thus must be construed together).
13
OCGA § 40-5-55 (a) (emphasis supplied).
14
OCGA § 40-5-55 (b).

5
any motor vehicle accident in which . . . one or more persons suffered a fractured

bone . . . or loss of consciousness.”15

Here, Trooper Roberts had reasonable grounds to believe that Bailey had

operated a motor vehicle, and that while doing so Bailey was involved in a traffic

accident resulting in serious injuries. Although it is clear only that Bailey was

unconscious at the time the samples were taken and not whether he lost consciousness

as a result of the accident, evidence introduced at trial16 showed that Bailey’s femur

was fractured in the accident. Thus, he is deemed to have given consent to testing

under the statute, and he did not withdraw this consent by virtue of being

unconscious.17 Reading OCGA § 40-5-55 (b) with OCGA § 40-5-67.1, we find that

Trooper Roberts was not required to give the implied consent notice to the

15
OCGA § 40-5-55 (c).
16
See Horne v. State, 318 Ga. App. 484, 488 (3) (733 SE2d 487) (2012) (“[I]n
reviewing the denial of a motion to suppress, we consider all the evidence of record,
including evidence introduced at trial.”) (citation and punctuation omitted).
17
See OCGA § 40-5-55 (a), (c); Cooper v. State, 277 Ga. 282, 285 (II) (587
SE2d 605) (2003).

6
unconscious Bailey.18 We thus reject Bailey’s argument that the State failed to comply

with the statute.

2. Bailey also contends that the court must rely on the totality of the

circumstances, not just on compliance with the implied consent statute, in showing

that there was actual, voluntary consent. Bailey relies on the Georgia Supreme

Court’s recent decision in Williams v. State.19

(a) As an initial matter, we reject the State’s argument that Bailey waived the

actual consent/Williams issue by failing to raise it prior to the motion for new trial.

The State contends that Bailey argued only that the police did not comply with the

implied consent statute and did not argue that the consent was not actual and

voluntary.

In Williams, the Supreme Court of Georgia held that mere compliance with the

statutory implied consent requirements did not equate to actual and voluntary consent

so as to be an exception to the constitutional mandate of a warrant.20 Williams was not

18
See State v. Bass, 273 Ga. App. 540, 543 (1) (615 SE2d 589) (2005).
19
Supra.
20
Id. at 822-823.

7
decided until March 2015,21 after Bailey filed his motions to suppress and for new

trial but before the new trial hearing. Under the pipeline rule, however, a new rule of

criminal procedure will be applied to pending cases, so long as the issue was

preserved for appellate review.22

“[A]ll motions to suppress should be governed by O.C.G.A. § 17-5-30 . . . to

the extent possible.”23 Under that provision, a defendant may move to suppress

evidence either because the warrantless search was illegal or, where there was a

warrant, on one of three articulated grounds.24 Either way, “[t]he motion shall be in

writing and state facts showing that the search and seizure were unlawful.”25

Bailey argued in his motion to suppress that the search and seizure of his blood

and urine by Trooper Roberts at the hospital were conducted without a warrant or an

exception to the warrant requirement and in violation of the Fourth Amendment. At

the suppression hearing, he explained further that he was unconscious at the time of

21
See id.
22
Taylor v. State, 262 Ga. 584, 586 (3) (422 SE2d 430) (1992).
23
State v. Slaughter, 252 Ga. 435, 439 (315 SE2d 865) (1984).
24
OCGA § 17-5-30 (a).
25
OCGA § 17-5-30 (b).

8
the search and seizure. “The suppression motion must be sufficient to put the State

on notice as to the type of search or seizure involved, which witness to bring to the

hearing on the motion, and the legal issues to be resolved at that hearing.”26 The

motion filed by Bailey was sufficient to put the State on notice that the seizure of his

blood and urine was at issue and that it was necessary to present evidence to justify

the warrantless search.27 Bailey preserved the consent issue and is entitled to rely on

Williams because his case was in the pipeline when it was decided.28

(b) As the trial court noted and as the State argues, we have previously found

constitutional the taking of bodily substances from an unconscious suspect. In

Gilliam v. State,29 which we decided in 2008, we held that a warrantless search and

seizure was constitutional where the investigating officer had probable cause to

26
See Glenn v. State, 288 Ga. 462, 465 (2) (a) (704 SE2d 794) (2010)
(punctuation and citation omitted) (finding motion sufficiently put State on notice
where motion claimed search warrants were invalid because supporting affidavit
contained illegally obtained evidence).
27
See id.
28
Cf. McClure v. Kemp, 285 Ga. 801, 803 (684 SE2d 255) (2009) (pipeline rule
did not apply where defendant failed to file motion to suppress and thus did not
preserve suppression issue for appellate review).
29
295 Ga. App. 358 (671 SE2d 859) (2008).

9
believe that the defendant had been driving while under the influence due to his

unsafe act of failing to yield and the smell of alcohol on his breath.30 Because the

defendant was involved in an accident resulting in serious injuries, we affirmed the

denial of his motion to suppress the results of his blood tests, even though his blood

was drawn while he was unconscious.31

In 2013, however, the United States Supreme Court decided McNeely,32 which

held 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 [v. California],33 it does not do

so categorically.”34 In McNeely, a blood sample had been taken from the suspect,

despite his refusal to submit to such testing.35 The Court noted the “advances in the

30
Id. at 359.
31
Id. See also Hough v. State, 279 Ga. 711, 713 (1) (a) (620 SE2d 380) (2005)
(requiring the State to show that the investigating officer had probable cause to
believe that the suspect was driving under the influence in order to proceed under the
serious injuries provision of OCGA § 40-5-55 (a)).
32
Supra.
33
384 US 757 (86 SCt 1826, 16 LE2d 908) (1966).
34
McNeely, supra at 1563 (II) (C) (plurality). Justice Kennedy concurred in
Parts I, II-A, II-B, and IV only. Id. at 1568.
35
Id. at 1556-1557 (I).

10
47 years since Schmerber was decided that allow for the more expeditious processing

of warrant applications, particularly in contexts like drunk-driving investigations

where the evidence offered to establish probable cause is simple.”36 Where officers

can reasonably obtain a warrant without significantly undermining the efficacy of

such search, the Fourth Amendment37 mandates that they do so.38

In Williams, the Supreme Court of Georgia found that what McNeely and post-

McNeely decisions from other states “seem to indicate is that mere compliance with

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

36
Id. at 1561-1562 (II) (B).
37
U.S. Const. amend. IV (“The right of the people to be secure in their persons,
houses, papers, and effects, against unreasonable searches and seizures, shall not be
violated, and no Warrants shall issue, but upon probable cause, supported by Oath or
affirmation, and particularly describing the place to be searched, and the persons or
things to be seized.”).
38
McNeely, supra at 1561 (II) (B) (majority). See also Birchfield v. North
Dakota, No. 14-1468, slip op. at 34 (V) (C) (3), 579 US ___ (___ SCt ___, ___ LE2d
___) (decided June 23, 2016) (“Nothing prevents the police from seeking a warrant
for a blood test when there is sufficient time to do so in the particular circumstances
or from relying on the exigent circumstances exception to the warrant requirement
when there is not.”).

11
constitutional mandate of the warrant.”39 The defendant in Williams had submitted to

the blood test after the police officer read him the implied consent notice.40 However,

the Court remanded because, “[i]n 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 consent under the totality of the circumstances.”41

While Georgia appellate courts have not yet addressed whether Gilliam is still

good law in light of McNeely and Williams, courts from other jurisdictions generally

have found that, under McNeely, implied consent of an unconscious suspect is

insufficient to satisfy the Fourth Amendment. Those states have concluded that the

State must either obtain a warrant or show exigent circumstances for a warrantless

search under the totality of the circumstances.42 “The exigent circumstance doctrine

39
Williams, supra at 822.
40
Id.
41
Id.
42
Colorado v. Schaufele, 325 P3d 1060, Case No. 13SA276, slip op. at *42
(Colo. 2014); North Carolina v. Romano, Case No. COA15-940, slip op. at 14-15
(N.C. Ct. App. Apr. 19, 2016); Pennsylvania v. Myers, 118 A3d 1122, 1130 (Pa.
Super. Ct. 2015); Tennessee v. Cates, No. E2014-01322-CCA-R30CD, slip op. at 11-
14 (Tenn. Crim. App. 2015); Texas v. Ruiz, Case No. 13-13-00507-CR, slip op. at 9-

12
provides that when probable cause has been established to believe that evidence will

be removed or destroyed before a warrant can be obtained, a warrantless search and

seizure can be justified.”43

In a recent decision, Birchfield v. North Dakota,44 the United States Supreme

Court concluded that the Fourth Amendment allows breath tests, but not blood draws,

10 (Tex. App. 2015). See also California v. Arrendondo, 245 Cal.App.4th 186, 204-
206 (Cal. Ct. App. 2016), as modified (finding statutory implied consent could not
justify seizure alone but applying good-faith exception to exclusionary rule); Kansas
v. Meitler, 347 P3d 670 (Kan. Ct. App. 2015) (although implied consent statute was
unconstitutional, good-faith exception to exclusionary rule applied); New Jersey v.
Jones, 96 A3d 297 (N.J. Super. Ct. App. Div. 2014) (reversing denial of motion to
suppress where trial court used stricter analysis than the totality of the circumstances
test and finding that the accident, serious injuries, and hours-long police investigation
justified the warrantless blood sample); North Dakota v. Morales, 869 NW2d 417
(N.D. 2015) (finding evidence supported trial court’s finding of exigent
circumstances where the defendant was driving a motor vehicle involved in a fatal
accident late at night on Thanksgiving).
43
Alvarado v. State, 271 Ga. App. 714, 715 (1) (610 SE2d 675) (2005).
44
Supra.

13
under the search-incident-to-arrest exception to the warrant requirement.45 Although

none of the petitioners in Birchfield was unconscious,46 the Court espoused:

It is true that a blood test, unlike a breath test, may be administered to
a person who is unconscious (perhaps as a result of a crash) or who is
unable to do what is needed to take a breath test due to profound
intoxication or injuries. But we have no reason to believe that such
situations are common in drunk-driving arrests, and when they arise, the
police may apply for a warrant if need be.47

In Birchfield, the Court rejected the alternative argument of implied consent, as the

state statutes at issue went further than imposing civil penalties and evidentiary

consequences on motorists who refused to comply and imposed criminal penalties.48

Because one of the petitioners had consented to a blood test after a police officer

45
Id., slip op. at 33 (V) (C) (3). The Birchfield Court noted that blood alcohol
concentration could also be determined by testing a subject’s urine, which also
required the test subject’s cooperation. Id., slip op. at 6 n. 1. Because none of the
cases before the Court involved a urine test, the Court did not reach the issue whether
the search-incident-to-arrest exception applied. See id.
46
Id., slip op. at 13 (III).
47
Id., slip op. at 35 (V) (C) (3).
48
Id, slip op. at 36 (VI).

14
advised him that the law required him to do so, the Court remanded for the state court

to reevaluate the voluntariness of his consent under the totality of the circumstances.49

We agree with the State that it had probable cause to arrest Bailey for driving

under the influence. The record shows that Bailey was involved in a single-car

accident, he appeared to have been the driver, and there were no signs of braking

before the car hit an embankment and flipped over. The accident took place on a

“pretty” day on a clear road. Trooper Roberts had spoken to first responders, who

reported that they had smelled the odor of alcohol coming from Bailey. When

Trooper Roberts arrived on the scene, Bailey’s cousin (the other occupant of the

vehicle) admitted that she and Bailey had been “partying all night,” and a box found

next to the car contained syringes and what appeared to be methamphetamine and

marijuana.

The State, however, produced no evidence of exigent circumstances. For

example, there was no evidence regarding how long the warrant process was expected

to take and whether officers could have been seeking a warrant while Bailey was

being transported to the hospital. Thus, this could have been the situation imagined

by the McNeely Court “in which the warrant process will not significantly increase

49
Id., slip op. at 38 (VII).

15
the delay before the blood test is conducted because an officer can take steps to

secure a warrant while the suspect is being transported to a medical facility by

another officer.”50

In light of McNeely and Williams, Bailey’s implied consent was insufficient to

satisfy the Fourth Amendment, and he could not have given actual consent to the

search and seizure of his blood and urine, as he was unconscious.51 To the extent that

our decisions in Gilliam,52 Hill v. State,53 and Rogers v. State54 conflict with our

Supreme Court’s decision in Williams55 and the United States Supreme Court’s

50
McNeely, supra at 1561.
51
See Williams, supra (requiring finding of actual consent to satisfy the Fourth
Amendment). See also Arredondo, supra at 194 (“[D]efendant was unconscious at the
time of the seizure and thus incapable of manifesting consent voluntarily or
otherwise.”).
52
Supra.
53
208 Ga. App. 714, 715 (431 SE2d 471) (1993) (“If a suspect is dead,
unconscious, or otherwise incapable of refusing the test the officer lawfully can
extract a blood specimen under the aegis of protection of evidence without advising
the suspect of his rights concerning intoxicant tests.”) (citations and punctuation
omitted).
54
163 Ga. App. 641, 643 (1) (295 SE2d 140) (1982) (interpreting former
OCGA § 68A-902.1 (a) (4), which only required the arresting officer to advise the
suspect of his right to an independent test).
55
Supra.

16
decision in McNeely56 on this point, they are disapproved.57 Because the State failed

to demonstrate that exigent circumstances justified the warrantless search, the trial

court erred in admitting into evidence the results of Bailey’s blood and urine tests.

In the absence of the blood and urine test results, there is no competent

evidence that Bailey operated a vehicle with methamphetamine “present in his blood

and urine” as charged in the indictment. Thus, we must reverse Bailey’s conviction

for DUI (per se) based on insufficient evidence.58 Because we reverse based on

insufficient evidence, Bailey may not be retried.59

3. We must also vacate the guilty verdict on the DUI (less safe) count because

the introduction of the blood and urine test results must be considered harmful. “Error

of constitutional dimension is harmless only if it can be determined beyond a

56
Supra.
57
See Del Mazo v. Sanchez, 186 Ga. App. 120, 128 (366 SE2d 333) (1988) (“In
the event of a conflict between decisions of this court . . . and the Supreme Court . . . ,
we are bound to follow decisions of the Supreme Court.”) (citing Ga. Const. of 1983,
Art. VI, Sec. VI, Par. VI).
58
See Cuyuch v. State, 284 Ga. 290, 295 (3) (667 SE2d 85) (2008) (reversal
required when inadmissible evidence is the sole basis for conviction). See also Epps
v. State, 298 Ga. App. 607, 609 (1) (680 SE2d 636) (2009).
59
See Nance v. State, 274 Ga. 311 (553 SE2d 794) (2001).

17
reasonable doubt that it did not contribute to the jury’s guilty verdict.”60 In this case,

we cannot determine beyond a reasonable doubt that the evidence that Bailey’s blood

and urine test results revealed the presence of marijuana, methamphetamines, and

opioids did not contribute to the jury’s determination that he was less safe to drive at

the time of the accident.61

At trial, a witness qualified as an expert in forensic toxicology, testified at

length regarding the results of the blood and urine testing and her conclusions

therefrom. After detailing the amounts present of each drug, she opined:

A: [G]enerally when you see . . . the higher level of the parent drug
[methamphetamine] and the lower level of the metabolite
[amphetamine], you would expect that that person is still experiencing
those effects of the parent drug since it suggests a recent dosage. With
methamphetamine at higher levels, you can expect that person may be
jittery, having some muscle tremors; and in terms of how it affects the
central nervous system, . . . your brain and your reaction, you are going
to feel a sense of euphoria . . . very good feelings, very high, and a lot
of times that euphoria is so strong that it can be distracting to you,
especially if you are driving a car . . . . You could be distracted by that

60
Threatt v. State, 240 Ga. App. 592, 597 (1) (524 SE2d 276) (1999) (citation
omitted) (reversing DUI conviction where evidence was erroneously admitted in
violation of the Fourth Amendment).
61
See Smith v. State, 250 Ga. App. 583, 586 (1) (552 SE2d 528) (2001).

18
 euphoria which makes it difficult to concentrate on what’s going on on
the road if someone were to merge in front of you or a pedestrian step
out in the way, something like that.
Q: And what, if any, interplay is there between the levels of
methamphetamine and the levels of morphine?
A: So when you have conflicting stimulants and depressants in your
system, it’s similar to the analogy of if you give a drunk person coffee
to wake them up. It’s that idea of you have two things going on that are
giving conflicting signals in your brain at the same time. You can also
relate it to if you were driving a car and you had two people yelling
different sets of directions at you at the same time. It would be very
confusing because your brain wouldn’t know which set of signals to
listen to since these drugs are giving complete opposite signals.

Given this expert testimony regarding the effect on driving of the particular

combination of drugs detected in Bailey’s blood and urine, we cannot conclude

beyond a reasonable doubt that the erroneously admitted evidence did not contribute

to the DUI (less safe) guilty verdict.62

4. Without the blood and urine test results, the record is devoid of any evidence

that tends to show that Bailey was a less safe driver as a result of being under the

62
Cf. Bravo v. State, 304 Ga. App. 243, 249-250 (2) (696 SE2d 79) (finding the
improper admission of opinion testimony regarding the defendant’s blood alcohol
concentration was reversible error because it was highly probable that the evidence
contributed to the guilty verdict).

19
combined influence of amphetamine, methamphetamine, morphine, and hydrocodone,

as alleged in the indictment. The other evidence at trial only showed that Bailey had

used one of the drugs alleged (methamphetamine). The State thus failed to prove that

Bailey was a less safe driver as the result of the combined use of the four named

drugs.63 The indictment did not put Bailey on notice that he could have been

convicted of DUI (less safe) based on the use of methamphetamine only or the

combined use of methamphetamine and marijuana.64 Because our decision is based

upon insufficient evidence, Bailey may also not be retried on the DUI (less safe)

count.65

Judgment reversed in part and vacated in part. Doyle, C.J., Andrews, P.J.,

Barnes, P.J., Miller, P.J., Ellington, P.J., and Dillard, McFadden, Boggs, Ray,

Branch, McMillian, Rickman, Mercier, and Peterson, JJ., concur.

63
Cf. Head v. State, 303 Ga. App. 475, 477 (1) (693 SE2d 845) (2010)
(evidence insufficient where there was no evidence that the defendant “was a less safe
driver as a result of being under the influence of [alprazolam and cocaine]”)
(punctuation omitted).
64
Power v. State, 231 Ga. 335, 337 (1) (499 SE2d 356) (1988).
65
See Nance, supra.

20