McKIBBEN v. THE STATE
340 Ga. App. 89
| Ga. Ct. App. | 2017Background
- Driver Kirby McKibben was stopped after a dispatch report and observation of swerving; officer smelled alcohol, observed glazed eyes and thick speech, and arrested him for DUI.
- Officer read the statutory implied-consent notice from a card and asked, “Will you submit to the state administered chemical test of your blood?” McKibben answered “yes,” did not ask questions or request counsel, and did not resist.
- McKibben was handcuffed, transported less than a mile to a fire station, had cuffs removed, and a firefighter obtained a blood sample within an hour of arrest; result exceeded the legal BAC limit.
- McKibben moved to suppress the blood-test results, arguing his consent was not voluntary under Williams v. State and that the implied-consent notice was coercive or misleading.
- The trial court denied suppression after finding, under a totality-of-the-circumstances analysis, that McKibben freely and voluntarily consented; the Court of Appeals affirmed.
Issues
| Issue | McKibben's Argument | State's Argument | Held |
|---|---|---|---|
| Whether McKibben freely and voluntarily consented to a warrantless blood draw | His “yes” after the implied-consent reading was mere acquiescence and not actual consent under Williams | Totality of circumstances shows actual, voluntary consent (polite interaction, no threats, reasonable understanding, quick testing) | Consent was voluntary; suppression denied and convictions affirmed |
| Whether the implied-consent notice coerces consent by failing to say one can refuse | The notice implies no choice and thus renders any affirmative response involuntary | The notice alone is not dispositive; knowledge of right to refuse is a factor but not required for effective consent | The notice did not render consent involuntary on these facts |
| Whether lack of explicit warning that test results may be used in prosecution negates consent | Failure to inform that results could be used criminally vitiates voluntariness | No such notice is required for voluntary consent; absence is not dispositive | Court rejected this claim; absence of that specific warning did not negate consent |
Key Cases Cited
- Williams v. State, 296 Ga. 817 (Ga. 2015) (warrantless blood tests require case-by-case totality-of-the-circumstances analysis for voluntariness)
- Klink v. State, 272 Ga. 605 (Ga. 2000) (previous rule equating affirmative implied-consent response with consent)
- Birchfield v. North Dakota, 136 S. Ct. 2160 (U.S. 2016) (breath tests may be search incident to arrest but blood tests generally require warrant absent consent)
- Kendrick v. State, 335 Ga. App. 766 (Ga. Ct. App. 2016) (applying Williams and noting implied-consent responses may suffice absent evidence of involuntariness)
- Schneckloth v. Bustamonte, 412 U.S. 218 (U.S. 1973) (consent validity judged under totality of the circumstances)