Williams v. State

Smith, Judge,

dissenting.

I would reverse.

Williams, while driving, was involved in a one-car accident in which a passenger was killed. A patrol officer directed a nurse to remove a sample of blood from Williams. Before removal of the blood sample, the officer read to Williams the implied consent law as provided by Georgia law. There is no evidence that Williams understood or knew when it was read to him. The evidence supports the fact that he never did consent and that his physical condition was such that he was incapable of consent.

Code § 68A-902.1(a) (Ga. L. 1974, pp. 633, 672), dealing with the giving of chemical tests, refers to Ga. L. 1968, pp. 448, 452 (Code Ann. § 68-1625.1) as the rule to follow in submitting to a blood test at the request of a law enforcement officer. There was no § 68-1625.1 in effect at the time of the alleged crime in this case, as this section was repealed by Ga. L. 1974, pp. 633,691; and Ga. L. 1975, pp. 1008,1045. This section was re-enacted by the legislature in Ga. L. 1975, pp. 1008, 1028 and codified as Code Ann. § 68B-306, by Ga. L. 1977, p. 1036, effective March 30, 1977, Code Ann. § 68-1625.1 was corrected to read Code § 68B-306.

In dealing with a similar situation, the Supreme Court stated in Lamons v. Yarbrough, 206 Ga. 50, 56 (55 SE2d 551) (1949), "[I]t is the duty of the court to arrive at the legislative intent, and that, in doing so, it should not adopt an arbitrary rule under which it must be held without variance.. .that the legislature intended to make a typographical or clerical error, the result of which would be to make nonsense of the Act, and not carry out the legislative scheme, but to destroy it.” It is clear in this case that the legislature meant to carry forward into the new Act, the same provisions set forth in the repealed Act as it re-enacted the provisions of the old Act under a new section but failed to replace the old § 68-1625.1 with the new one, § 68B-306. However, in 1977, the clerical error was corrected by deleting the old section and inserting the new.

*87The matter of extracting blood from an unconscious person to determine the alcoholic content without his consent, is not a new one before this court.

In the case of Smith v. State, 143 Ga. App. 347 (238 SE2d 698) (1977), this court held that it was legal to do so. In arriving at this conclusion the Smith case held that it was the intent of the legislature "that, under the exigent circumstances, the officer lawfully can extract a blood specimen under the aegis of protection of evidence.” (Emphasis supplied.) The case also held that § 68B-306(b) referred "only to relevant provisions of § 68A-902.1.” It is not within the court’s province to decide what is or is not relevant. When the legislature said "subject to the provisions of § 68A-902.1” that is what it meant, nothing more, nothing less; the court cannot construe otherwise.

This court in Hulsey v. State, 138 Ga. App. 221, 222 (225 SE2d 752) (1976), thusly answered the state’s contention that it had substantially complied with the law: "This begs the question; substantial compliance with the provision as to additional tests does not compensate for the total failure to advise the defendant at any time of his right to a urine analysis.” (Emphasis supplied.) The court in this case also pointed out that, even though a person is presumed to know the law, "where the statute itself provides that a person 'shall’ be advised of his rights under the law, the legislature obviously meant to abrogate this presumption and replace it with the requirement that notice be given.” This court has made it clear that the legislative intent as to all portions of § 68A-902.1 are relevant in every case involving chemical tests made thereunder and each provision set out therein is to be complied with in every detail. If the Smith case had given the unconscious man the right to object, when he regained consciousness, to the use of the blood specimen, then he would have been granted the same protection under the statute that the conscious man had. If he objected, then you would proceed against him as provided in § 68B-306 (c) and(d). To hold otherwise is an unconstitutional construction of this statute. Our courts have held over and over again that, "a statute must be so construed, if fairly possible, as to avoid not only the *88conclusion that it is unconstitutional, but also grave doubts upon that score. [Cit.] The language of a statute must be given a reasonable construction; and where susceptible of more than one meaning, it should be interpreted consistently with the Constitution.” Forrester v. Culpepper, 194 Ga. 744, 749 (22 SE2d 595) (1942). (Emphasis supplied.) Smith, supra, places an unconstitutional construction upon Code Ann. § 68B-306(b). Both § 68B-306 and § 68A-902.1 deal with a single class, that is persons driving under the influence of alcohol or drugs and the suspension of license for refusal to submit to chemical tests, as well as how specimens may be obtained and tested by law enforcement officers from all persons suspected of driving under the influence. Section 68B-306 (a), supra, deals with the conscious person; (b) deals with the unconscious person.

Courts are to interpret statutes only if they are ambiguous. This statute is not ambiguous. It must be noted that § 68B-306 (a) states how a conscious person must be dealt with subject to the provisions of § 68A-902.1, [emphasis supplied] to a chemical test or tests of his blood, breath or urine or other bodily substances.”

Section 68B-306(b) states how an unconscious person must be dealt with, stating, "shall be deemed not to have withdrawn the consent provided by paragraph (a) of this section and the test or tests may be administered, subject to the provisions of % 68A-902.1.” (Emphasis supplied.)

The Georgia legislature has enacted a statute dealing with how tests may be given those suspected of driving under the influence. By statute, our legislature has given more protection to this class of people than our Constitution provides. This it can do our legislature has seen fit, by statute, to give this class of persons a statutory right of privacy which cannot be violated except by consent. There are no exceptions set forth in the statute. Generally speaking, the intention of the legislature is to be gathered from the statute as a whole rather than from a single-word, phrase or paragraph. Taking § 68A-902.1 and § 68B-306 and reading them together, which you must do to arrive at the legislative intent, you cannot find any hint of legislative intent that the police officer, or anyone else, could extract blood from an unconscious *89person, without consent, "under the aegis of protection of evidence.” Now the legislature did not say the consent must be obtained before or after taking the blood of the unconscious person, but, it did say consent must be obtained from both the conscious and unconscious person. In view of this, the sensible construction to be placed thereon, is that such consent must be obtained when the person regains consciousness. Therefore, take the blood while he is unconscious, and, when he regains consciousness, give him the option of consenting or refusing to allow the blood test to be used as evidence. In this way, all members of the class will have been granted equal protection and due process of the law.

I think, perhaps, the Smith case and the majority in this case overlooked the fact that the Georgia legislature saw fit, in its wisdom, to enact legislation regulating how people driving under the influence must be dealt with. The other jurisdictions dealing with this matter of obtaining blood from persons suspected of being under the influence did not have a statutory provision whereby they were directed to obtain consent before taking the blood sample.

It is obvious that both the conscious and unconscious person is of the same class covered by the statute, as (a) and (b) are inter-dependent. The consent in (b) is achieved by referring to (a), and both are subject to the provisions of § 68A-902.1. This section states, "Upon the trial of any civil or criminal action or proceeding . . . the following provisions shall apply.” In Nelson v. State, 135 Ga. App. 212, 214 (217 SE2d 450) (1975), this court held that "the advice of the right in this statute is clearly connected to and affects the admissibility of the test results into evidence in a criminal proceeding. In the absence of the advice, the intoximeter test results are inadmissible.” The court was dealing with § 68A-902.1 and made no distinction in what type criminal case evidence obtained by chemical tests was to be used, and neither does the statute, as it says "any civil or criminal action.” Therefore, all persons under the influence of alcohol or drugs using a Georgia highway are to have equal protection and due process of the law as provided by these two statutes.

*90Therefore let us take a hypothetical case involving John Doe and Richard Roe. (Note: Richard Roe is Williams in our case.) Both men are driving separate cars on a Georgia highway. They have a head-on collision and a passenger is killed in each car. John Doe is conscious, Richard Roe is unconscious. A state trooper arrives on the scene, smells alcohol on both and proceeds under Code §§ 68A-902.1 and 68B-306, as to each, as follows:

John Doe: The officer proceeds "subject to the provision of§ 68A-902.1.” (Emphasis supplied.) He reads him the implied consent law and requests a breath, blood or urine test; John Doe refuses. Section 68B-306(c) states that, upon his refusal to submit to a test as provided in paragraph (a) of this section, none shall be given and his license suspended, subject to review as provided in this Title. Then (d) and (e) proceed to set out how the hearing will be conducted.

Richard Roe: The unconscious one is taken to the hospital. Section 68B-306(b) deals with him. This subsection refers to and depends upon (a) of § 68B-306, supra, for its implied consent power and states that the test or tests may be administered, "subject to the provisions of section 68A-902.1.” (Emphasis supplied.) Subsection (a) (2) states, "when a person shall submit to a blood test at the request of a law enforcement officer under the provisions of section 68-1625.1 (68B-306) . . (Emphasis supplied.) This section plainly forbids the taking of blood without Richard Roe’s consent. Because he is unconscious, Richard Roe cannot refuse or consent and is thereby deprived of the right that John Doe has, that is, the right to refuse and suffer only a revoked driving license after a hearing. There is no provision for Richard Roe to have a hearing of any kind upon the taking of his blood without his consent or knowledge. Reading the implied consent law to Richard Roe (Williams), who is unconscious, is comparable to reading a Chinaman his Miranda rights in English when he speaks only Chinese.

This court has strictly construed these statutes to the point that it has reversed convictions because the arresting officer failed to advise the arrested person that he had the right to have another qualified person of his *91own choosing administer a chemical test in addition to the intoximeter test administered at the direction of the arresting officer. Nelson v. State, 135 Ga. App. 212, supra. The Supreme Court in Garrett v. Dept. of Public Safety, 237 Ga. 413 (228 SE2d 812) (1976), took this same position. Also, in Torley v. State, 141 Ga. App. 366 (233 SE2d 476) (1977), this court stated the arresting officer at the time of the arrest must advise the person arrested of his rights to an independent test other than the intoximeter test he is giving, even when he consents to a breath test.

It can be seen by these holdings that the statute has been strictly construed. Therefore, this court should not stray from a strict construction to a construction that is incompatible with the constitutionality of the statute. To follow the Smith case, supra, is to place a construction upon this statute whereby in our hypothetical case, Richard Roe would be denied equal protection and due process of the law under the Fourteenth Amendment of the United States Constitution (Code § 1-815) and the Constitution of Georgia (Code Ann. §§ 2-102 and 2-103). The cases have held over and over again that, "it is only in cases where laws are applied differently to different persons under the same or similar circumstances that the equal protection of the law is denied.” Buchanan v. State, 215 Ga. 791, 792 (113 SE2d 609) (1960). See Chatterton v. Dutton, 223 Ga. 243, 245 (154 SE2d 213) (1967) in which the court said, "the guaranty of equal protection of the laws requires that all persons shall be treated alike under like circumstances and conditions, both in privileges conferred and in liabilities imposed.” Finally on the question of equal protection the court in Montgomery v. Suttles, 191 Ga. 781, 788 (13 SE2d 781) (1941), stated: "Though the law itself be fair on its face and impartial in appearance, yet, if it is applied and administered by public authority with an evil eye and an unequal hand, so as practically to make unjust and illegal discriminations between persons in similar circumstances, material to their rights, the denial of equal justice is still within the prohibition of the constitution.”

Both Doe and Roe were using the highway as a privilege, not as a right, and for the privilege of using the highway the users consent to tests for drugs or alcohol. If *92one refuses to take the test, he will lose his driving license; that is, the state revokes his privilege to use the highway. This choice, of agreeing to or rejecting the test, is not extended to the unconscious man, even though he is included in the same statute concerning the same crime. Therefore, under the same or similar circumstances all the people subject to the statute are not treated alike.

Our courts, in dealing with consent, have held over and over again that a person has to be mentally competent to give his binding consent. Black’s Law Dictionary defines consent as "[V]oluntary agreement by a person in the possession and exercise of sufficient mentality to make an intelligent choice to do something proposed by another.” Therefore, when § 68B-306 (a) and (b) states that any person using the highways of Georgia "shall be deemed to have given consent, subject to the provisions of § 68A-902.1, to a chemical test or tests. . .,” it means just that. There is no provision in § 68A-902.1 allowing an officer or anyone else to take the blood of anyone conscious or unconscious without his consent. It would logically follow that the only way to get the consent of the unconscious man is to do so when he regains consciousness. So, take the blood, hold it until he is capable of giving his consent, and then ask him if he consents. If he does not, proceed as provided by law, and all parties covered by the statute have been treated equally under the law. To hold as Smith did, and the majority in this case, is to deny Williams equal protection and due process of the law and to place an unconstitutional construction upon the statutes, which Forrester v. Culpepper, 194 Ga. 748, supra, says we must not do.

I respectfully dissent.

I am authorized to state that Presiding Judge Deen joins in this dissent.