OCGA § 40-5-55; constitutional question. Gwinnett State Court. Before Judge Iannazzone.
Lance W. Tyler, for appellant.
Rosanna M. Szabo, Solicitor-General, Joelle M. Nazaire, Shane R. McKeen, Assistant Solicitors-General, for appellee.
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). He had moved unsuccessfully to suppress the results of a state-administered blood test 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. His challenge is that Georgia's implied consent statute, OCGA § 40-5-55, is unconstitutional as applied in his case because consent obtained solely under the statute does not amount to voluntary [296 Ga. 818] consent for purposes of the Fourth Amendment and the related provision of the State Constitution. For the reasons that 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 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 Miranda  rights. The officer read Williams the age-appropriate statutory implied consent notice and [296 Ga. 819] 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 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, 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 S.E.2d 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 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 S.E.2d 865) (1984), citing Coolidge v. New Hampshire, 403 U.S. 443, 454-455 (91 S.Ct. 2022, 29 L.Ed.2d 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 S.Ct. 2408, 57 L.Ed.2d 290) (1978), and McDonald v. United States, 335 U.S. 451, 456 (69 S.Ct. 191, 93 L.Ed. 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 S.Ct. 1826, 16 L.Ed.2d 908) (1966), addressed the Fourth Amendment implications of a warrantless blood draw in a DUI case. The Supreme Court stated it was to [296 Ga. 820] 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. The Schmerber court acknowledged that " [w]hile early cases suggest[ed] that there is an unrestricted 'right on the part of the [g]overnment ... 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 769, 770. 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 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 ...