A New Georgia DUI Defense?

DUI law and litigation in Georgia has taken on a new energy this summer with the Georgia Supreme Court decision of Williams v. State, S14A1625 (2015). In this landmark decision, our state supreme court found that before an officer can ask a suspected drunk driver for a state blood, breath or urine test without a warrant, they must obtain valid, voluntary and actual consent from the driver. The argument is based on the long established notion that searches are conducted either with or without a warrant.

“The most basic constitutional rule in this area is that searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment-subject only to a few specifically established and well-delineated exceptions.”—State v. Slaughter, 252 Ga. 435 (1984).

Courts have found when someone gives a state administered test (blood, breath or urine), this constitutes a search for purposes of the 4th Amendment. They are asked to give these tests under Georgia’s Implied Consent Law. Because most DUI stops culminate in a request for a state test without a warrant, this “search” of the human body can only be upheld if an exception to the warrant requirement exists. There either needs to be some emergency that excuses the officer from having to obtain a warrant, OR, the officer must get valid and voluntary consent from the suspected DUI driver.

With the decision in Williams making waves in the legal community, many cases are now being litigated on this issue. The question begs, how can someone give voluntary consent to give a state test if they are under the influence of alcohol? To succeed in a DUI prosecution, the State alleges that the suspect’s judgment is affected because they are driving intoxicated. Many defense attorneys are now using this assertion in pre-trial motions to get these forensic tests suppressed, arguing that the State can’t prove voluntary consent if they are also alleging that the defendant was impaired by drugs or alcohol.

So far, trial courts are ruling on this issue in a case-by-case basis. As the law in this area continues to evolve, it will be interesting to see how Georgia’s Implied Consent law and DUI cases all over the state are affected.

Schiavone Law Group offers DUI defense and representation in Georgia. Ashley Schiavone is the 2015 Author of Defending DUI-Case Outline Georgia Edition.

Criminal Lawyer Fulton County