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Involvement in a serious accident is no longer sufficient reason to compel drivers to submit to drug and alcohol testing, the Georgia Supreme Court ruled Monday. In a move that thrilled DUI lawyers and frustrated prosecutors, the unanimous court struck down a portion of O.C.G.A. � 40-5-55 (a), Georgia’s “implied consent” law. The code section allowed law enforcement officers investigating an accident to compel blood, breath and urine testing from drivers involved in accidents resulting in serious injury or death. Now, officers must place a driver under arrest or have sufficient probable cause for a search before they can take blood samples. Justice P. Harris Hines wrote that the statute violates Georgians’ rights to be free of unreasonable searches and seizures under the Georgia Constitution and the Fourth Amendment. Cooper v. State, No. S03A1255 (Sup. Ct. Ga. Oct. 6, 2003). “To the extent that O.C.G.A. � 40-5-55 (a) requires chemical testing of the operator of a motor vehicle involved in a traffic accident resulting in serious injuries or fatalities regardless of any determination of probable cause, it authorizes unreasonable searches and seizures in violation of the State and Federal Constitutions,” Hines wrote. Sherry Boston, who handled the appeal when she was with the Chestney-Hawkins Law Firm, said troopers routinely test everyone involved in an accident with an injury, citing the statute as authority. “It is absolutely going to change how police investigate accidents,” said Boston, now with The Bernstein Firm. “They’re actually going to have to investigate these cases instead of just taking blood from everyone and seeing if anything shakes out.” Without the implied consent law, troopers would have to see something that would lead them to believe that the driver they want to test had violated the law before they could demand a blood sample — an empty whiskey bottle, drug residue and breath that reeks of alcohol might be enough, for example. Barrow County Assistant District Attorney A. Brett Williams, who worked on the appeal for the state, called the decision “unfortunate.” “The circumstances that are often present in accidents with injuries, in my opinion, justify that portion of the code,” Williams said. The statute specifies that “any person who drives or is in actual physical control of any moving vehicle in violation of any provision of Code � 40-6-391 constitutes a direct and immediate threat to the welfare and safety of the general public. Therefore any person who operates a motor vehicle upon the highways or elsewhere throughout this state shall be deemed to have given consent … to a chemical test or tests of his or her blood, breath, urine or other bodily substances for the purposes of determining the presence of alcohol or any other drug, if arrested … or if such person is involved in any traffic accident resulting in serious injuries or fatalities.” Before asking drivers to submit to tests, troopers read an implied consent notice, informing them that state law entitles law enforcement to take the samples, and that if they refuse, the state can suspend their license for at least a year and use the refusal against them at trial. According to the statute, unconscious people are “deemed not to have withdrawn … consent.” PRESENCE OF COCAINE SUPPRESSED According to the decision, on Aug. 11, 2000, Carey D. Cooper was traveling east on Atlanta Highway in Barrow County when he crashed his pickup head-on into a truck driven by Johnny R. Boles, who was headed west on Atlanta Highway. Emergency medical personnel arrived at the scene and evacuated Boles and Cooper to different hospitals before a Georgia State Patrol trooper arrived on the scene. After evaluating the accident scene and noticing that the wreck appeared to be a head-on collision, the trooper went to Boles at the hospital and discovered that he had a broken arm. On the basis of the broken arm, which constituted a serious injury under the statute, the trooper took a blood sample from Boles. He then went to the hospital where Cooper was to get a sample from him. “The trooper read Cooper the implied consent notice … and Cooper agreed to submit to the blood test. Cooper was not under arrest, and the trooper’s sole basis for administering the blood test to Cooper was because he believed that [the statute] mandated that he do so inasmuch as Cooper was involved in a traffic accident resulting in serious injuries,” Hines wrote. The test showed that Cooper tested positive for cocaine, benzoylecgonine and hydrocodone. Before trial on DUI charges, he moved to suppress the results, arguing that the state had compelled a blood sample from him without probable cause. Winder attorney William D. Healan III, who handled the case in the trial court, said his client was not affected by the “trace” drugs in his system. “The trooper certainly didn’t notice any impairment,” said Healan. The trial court denied the motion. Cooper was convicted of driving under the influence of cocaine and benzoylecgonine but acquitted of a charge of driving under the influence of hydrocodone. However, in their decision the justices stated that the test results must be suppressed and Cooper must receive a new trial. “Cooper was offered two choices, neither of which the trooper was legally authorized to offer. Consequently, the trooper completely misled Cooper, albeit unintentionally, about his implied consent rights, and any consent based upon the misrepresentation is invalid,” Hines wrote. POLICE STRIPPED OF ‘IMPORTANT TOOL’ Natalie Z. DiSantis, director of public affairs for the state law department, which submitted an amicus brief in the case, said the office’s reaction is “extreme disappointment.” “They’ve taken away a very important tool,” she said. “The legislative intent was clear — to protect the health and welfare of the public.” The court recognized the importance of protecting public welfare, but said blood-testing everyone in an accident exceeds the state’s authority to search people. “While the State’s interest in guarding the welfare and safety of its citizens from the perils caused by intoxicated drivers is beyond dispute, it is clear that a primary purpose of O.C.G.A. � 40-5-55 (a) is to gather evidence for criminal prosecution. 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 criminal conduct would justify dispensing with any finding of probable cause,” Hines wrote. Healan said that most of his DUI clients had to contend with the implied consent provision in one way or another. “Up until this case the Georgia State Patrol has been very good about testing anyone in an accident with an injury,” he said. That injury, Healan said, could range from a fractured skull to a broken finger. Now, he said, investigators will have to put together enough probable cause for an arrest or a search before they compel blood tests. Robert W. Chestney, whose office worked on the appeal, said the court’s ruling won’t be a severe handicap to DUI enforcement. “It just means that the government — the police — can’t just require people to submit to a wholesale search of their body without probable cause,” he said. Georgia is not the first state to strike down an implied consent statute. According to the decision, Supreme Courts in Mississippi, Alaska, Illinois and Pennsylvania have found problems with their implied consent statutes.

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