Georgia Supreme Court Says NO to Blood Tests

Court Strikes Down Mandatory Blood Tests for DUI

By BILL RANKIN 10/6/03

Atlanta Journal-Constitution Staff Writer

The Georgia Supreme Court today declared unconstitutional a provision of the state DUI law that requires drivers involved in serious accidents to take blood tests.

The "implied consent" statute allows police to ask a driver involved in a serious accident to take a blood test, even when there is no indication the driver was intoxicated or impaired. A refusal to take the test results in a suspension of driver's license and can be used against the driver in court.

The provision applies only to accidents that result in fatalities and serious injuries, which can include broken bones or loss of consciousness.

Atlanta lawyer Bob Chestney said the decision will affect many cases and have far-reaching impact.

"It's a bright day for the Fourth Amendment in these days we're living in where it's too popular to think that security is more important than personal liberty," Chestney said. "It's refreshing to see our Supreme Court buck that trend. It's a victory for personal freedom from government intrusion."

The court's ruling does not affect another aspect of the DUI implied consent law, which requires drivers to submit to blood tests when an officer finds evidence a driver was intoxicated or impaired.

Chestney's client, Carey Don Cooper, was involved in a two-vehicle collision on Aug. 11, 2000, in Barrow County. During the crash, the driver of the pickup sustained a broken arm.

After a trooper read Cooper the implied consent notice, Cooper agreed to take a blood test, which found traces of cocaine. Cooper was convicted of the misdemeanor offense and appealed that he had been subjected to an illegal search.

In a unanimous ruling by Justice Harris Hines, the Georgia Supreme Court agreed.

"While the state's interest in guarding the welfare and safety of its citizens with the perils caused by intoxicated drivers is beyond dispute, it is clear that a primary purpose of [the implied consent law] is to gather evidence for criminal prosecution," Hines wrote.

"No matter how important that purpose may be, it does not create a special need to depart from the Fourth Amendment's requirement of probable cause; otherwise it could be argued that the state's interest in securing evidence in any situation of potentially serious conduct would justify dispensing with any finding of probable cause," Hines said.

Winder lawyer Billy Healan, who also represents Cooper, said his client faced a 15-day jail sentence, a $1,000 fine and a year on probation. Healan said that at Cooper's trial there was no evidence that his client was impaired.

"This is an important ruling," Healan said. "The police should have reason to believe someone is under the influence before being allowed to test them."