HYNES v. THE STATE.
A17A0633
Court of Appeals of Georgia
MAY 31, 2017
(801 SE2d 306)
SELF, Judge.
Judgment reversed and case remanded. McFadden, P. J., and Bethel, J., concur.
DECIDED MAY 31, 2017.
Ashleigh R. Madison, Dewey N. Hayes, Jr., for appellant.
Patrick S. Ferris, for appellees.
James Hynes was charged with failure to maintain lane, driving under the influence of alcohol (DUI) less safe, and DUI per se. He filed a motion to suppress the results of a blood test administered pursuant to a search warrant. Following a hearing, the trial court denied the motion. We granted Hynes‘s application for interlocutory appeal, and after reviewing the record and hearing transcript, we affirm for the reasons set forth below.
The transcript of the hearing on the motion to suppress includes the following colloquy between the State and the deputy:
Q: What was his answer to the implied consent card?
A: He refused State testing.
Q: Did he ever ask for an independent test?
A: He never directly asked for one, no.
Q: Okay. Did you take him to get an independent test?
A: I did not, as he refused implied consent.
Later, the following exchange occurred between Hynes‘s attorney and the deputy:
Q: Now, let‘s talk about after you arrest him and you read him implied consent, he tells you in response that he‘ll do an independent test, is that right?
A: Uh-huh . . . Yes, ma‘am, he does.
Q: And do you recall hearing him on the video say, you asked him to confirm, you will do an independent test? Do you remember asking him that?
A: Yes, I believe that‘s on the video.
Q: And he responded, yes. Is that right?
A: He said he would do an independent test, yes, ma‘am.
Q: Okay. At any point thereafter was a test administered in this case?
A: A test was administered after a search warrant was completed.
Q: Okay. And what kind of test was that?
A: It was a blood test.
Q: All right. And after the blood test was administered, was there any effort made to accommodate an independent test?
A: No, ma‘am, because he refused implied consent.
Hynes moved to suppress the results of the blood test because the deputy refused to honor his request for an independent test. Hynes argued that his right to an independent test under
In his sole enumeration of error, Hynes contends that the trial court erred in ruling that
The State argues that
The question of whether a DUI suspect has the right to an independent test when that suspect refuses a test under the implied consent law, but is then tested pursuant to a search warrant, appears to be one of first impression in Georgia.1 We conduct a de novo review
Implied Consent
In Williams v. State, 296 Ga. 817 (771 SE2d 373) (2015), the Supreme Court of Georgia explained that
[a DUI] 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. 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.
(Citation omitted.) Id. at 819. The United States Supreme Court in Schmerber v. California, 384 U. S. 757 (86 SCt 1826, 16 LE2d 908) (1966), recognized the presence of “exigent circumstances” as the first exception to the warrant requirement in the context of a blood test taken by a physician while the defendant was in the hospital after being arrested, ruling that a warrantless blood draw may be appropriate where the officer was confronted with an emergency which threatened “‘the destruction of evidence.‘” Id. at 770-771 (IV). See also Missouri v. McNeely, 569 U. S. 141 (133 SCt 1552, 185 LE2d 696) (2013) (rejecting per se rule of admissibility of warrantless blood draws based upon exigent circumstances). Another exception to the warrant requirement is a search pursuant to consent. See Cooper v. State, 277 Ga. 282, 291 (VI) (587 SE2d 605) (2003). Georgia‘s implied consent law is based on this exception. See id.
In codifying Georgia‘s implied consent law, our General Assembly declared as a matter of law that persons in control of any moving vehicle while having an illegal blood alcohol concentration “consti-tute[] a direct and immediate threat to the welfare and safety of the
any person who operates a motor vehicle upon the highways or elsewhere throughout this state shall be deemed to have given consent, subject to Code Section 40-6-392, to a chemical test or tests of his or her blood, breath, urine, or other bodily substances for the purpose of determining the presence of alcohol or any other drug, if arrested for any offense arising out of acts alleged to have been committed in violation of Code Section 40-6-391 or if such person is involved in any traffic accident resulting in serious injuries or fatalities. The test or tests shall be administered at the request of a law enforcement officer having reasonable grounds to believe that the person has been driving or was in actual physical control of a moving motor vehicle upon the highways or elsewhere throughout this state in violation of Code Section 40-6-391. The test or tests shall be administered as soon as possible to any person who operates a motor vehicle upon the highways or elsewhere throughout this state who is involved in any traffic accident resulting in serious injuries or fatalities. Subject to Code Section 40-6-392, the requesting law enforcement officer shall designate which of the test or tests shall be administered, provided a blood test with drug screen may be administered to any person operating a motor vehicle involved in any traffic accident resulting in serious injuries or fatalities.
Id. This Code section is part of the implied consent statutory scheme which also includes
(a) Upon the trial of any civil or criminal action or proceeding arising out of acts alleged to have been committed by any person in violation of Code Section 40-6-391, evidence of the amount of alcohol or drug in a person‘s blood, urine, breath, or other bodily substance at the alleged time, as determined by a chemical analysis of the person‘s blood, urine, breath, or other bodily substance shall be admissible. Where such a chemical test is made, the following provisions shall apply:
(1) (A) Chemical analysis of the person‘s blood, urine, breath, or other bodily substance, to be considered valid under this Code section, shall have been performed according to methods approved by the Division of Forensic Sciences of the Georgia Bureau of Investigation on a machine which was operated with all its electronic and operating components prescribed by its manufacturer properly attached and in good working order and by an individual possessing a valid permit issued by the Division of Forensic Sciences for this purpose. The Division of Forensic Sciences of the Georgia Bureau of Investigation shall approve satisfactory techniques or methods to ascertain the qualifications and competence of individuals to conduct analyses and to issue permits, along with requirements for properly operating and maintaining any testing instruments, and to issue certificates certifying that instruments have met those requirements, which certificates and permits shall be subject to termination or revocation at the discretion of the Division of Forensic Sciences.
. . .
(2) When a person shall undergo a chemical test at the request of a law enforcement officer, only a physician, registered nurse, laboratory technician, emergency medical technician, or other qualified person may withdraw blood for the purpose of determining the alcoholic content therein, provided that this limitation
shall not apply to the taking of breath or urine specimens. No physician, registered nurse, or other qualified person or employer thereof shall incur any civil or criminal liability as a result of the medically proper obtaining of such blood specimens when requested in writing by a law enforcement officer; (3) The person tested may have a physician or a qualified technician, chemist, registered nurse, or other qualified person of his own choosing administer a chemical test or tests in addition to any administered at the direction of a law enforcement officer. The justifiable failure or inability to obtain an additional test shall not preclude the admission of evidence relating to the test or tests taken at the direction of a law enforcement officer; and
(4) Upon the request of the person who shall submit to a chemical test or tests at the request of a law enforcement officer, full information concerning the test or tests shall be made available to him or his attorney. The arresting officer at the time of arrest shall advise the person arrested of his rights to a chemical test or tests according to this Code section. . .
Drunk drivers take a grisly toll on the Nation‘s roads, claiming thousands of lives, injuring many more victims, and inflicting billions of dollars in property damage every year. To fight this problem, all States have laws that prohibit motorists from driving with a blood alcohol concentration (BAC) that exceeds a specified level. But determining whether a driver‘s BAC is over the legal limit requires a test, and many drivers stopped on suspicion of drunk driving would not submit to testing if given the option. So every State also has long had what are termed “implied consent laws.” These laws impose penalties on motorists who refuse to undergo
testing when there is sufficient reason to believe they are violating the State‘s drunk-driving laws.
Id. at 444 (136 SCt at 2166).
Like many other states, Georgia relies upon incentives and penalties in the implied consent law to encourage DUI suspects to submit to State-administered testing. In State v. Simmons, 270 Ga. App. 301 (605 SE2d 846) (2004) (physical precedent only), we noted that Georgia‘s implied consent law offers two choices to DUI suspects: “(1) submit to State-administered chemical testing with right to independent testing, if desired, or (2) refuse State testing, suffering the attendant evidentiary consequences.”3 Id. at 303. See also Padidham v. State, 291 Ga. 99 (728 SE2d 175) (2012). In Padidham, our Supreme Court recognized that the obligation placed on the officer by the implied consent statute is intended to protect the DUI suspect: “[O]ne cannot make an intelligent choice to submit to a chemical test without the knowledge of the right to have an independent test.” (Citation and punctuation omitted.) Id. at 101 (2).
[T]he choice to submit or refuse to submit to the analysis of one‘s blood, breath, urine or other bodily substance will not be an easy or pleasant one to make, “but the criminal process often requires suspects and defendants to make difficult choices.” DUI defendants similarly must determine, often under difficult and stressful circumstances, whether to request an independent test.4
Id. at 102-103 (2), citing South Dakota v. Neville, 459 U. S. 553, 560 (II) (103 SCt 916, 74 LE2d 748) (1983).
In Neville, the United States Supreme Court held that “the admission into evidence of a defendant‘s refusal to submit to [a blood-alcohol test] does not offend the right against self-incrimination.” Neville, supra, 459 U. S. at 554. The Court reasoned that a DUI
the Miranda warnings emphasize the dangers of choosing to speak (“whatever you say can and will be used as evidence against you in court“), but give no warning of adverse consequences from choosing to remain silent. This imbalance in the delivery of Miranda warnings, [however], implicitly assures the suspect that his silence will not be used against him. The warnings challenged here, by contrast, contained no such misleading implicit assurances as to the relative consequences of his choice. The officers explained that, if respondent chose to submit to the test, he had the right to know the results and could choose to take an additional test by a person chosen by him.
Id. at 565 (III). The Court also pointed out that the warning that the State could revoke the DUI suspect‘s license for one year “made it clear that refusing the test was not a ‘safe harbor,’ free of adverse consequences.” Id. at 566 (III). The case law interpreting implied consent laws demonstrates that the judiciary overwhelmingly sanctions the use of civil penalties and evidentiary consequences against DUI suspects who refuse to comply.
Statutory Construction
Our consideration of Hynes‘s enumeration of error requires application of the elementary rules of statutory construction.
[I]n considering the meaning of a statute, our charge as an appellate court is to presume that the General Assembly meant what it said and said what it meant. Thus, we must afford the statutory text its plain and ordinary meaning, consider the text contextually, read the text in its most natural and reasonable way, as an ordinary speaker of the
English language would, and seek to avoid a construction that makes some language mere surplusage. Importantly, when the language of a statute is plain and susceptible of only one natural and reasonable construction, courts must construe the statute accordingly.
(Citations and punctuation omitted.) Wright v. Brown, 336 Ga. App. 1, 3 (2) (783 SE2d 405) (2016). See also Deal v. Coleman, 294 Ga. 170, 172 (1) (a) (751 SE2d 337) (2013). Additionally, when a statute is part of a statutory scheme, as in this case, it must be analyzed in relation to other statutes of which it is a part. As our Supreme Court has explained,
in our search for the meaning of a particular statutory provision, we look not only to the words of that provision, but we consider its legal context as well. After all, context is a primary determinant of meaning. For context, we may look to the other provisions of the same statute, the structure and history of the whole statute, and the other law — constitutional, statutory, and common law alike — that forms the legal background of the statutory provision in question. This is what we mean when we speak of discerning “the intent of the legislature,” as that “intent” is reflected in the relevant statutory text and its contextual backdrop.
(Citations and punctuation omitted.) Algren v. State, 330 Ga. App. 1, 7 (3) (764 SE2d 611) (2014).
Analysis
Bearing in mind the principles of implied consent and statutory construction, we now consider the question of whether a DUI suspect has the right to an independent test when that suspect refuses testing under the implied consent law but is then tested pursuant to a search warrant. As noted previously, Hynes contends that he was entitled to an independent test because under the plain language of
The case law discussed above demonstrates that under implied consent law, a DUI suspect has the option of accepting or refusing the State-administered test, after being advised of the attendant consequences for both choices. The law provides for penalties, including license revocation and admission into evidence of the refusal to submit to State-administered testing, but also offers a DUI suspect
Reading the statute in the manner suggested by Hynes would vitiate the nature of independent testing as an incentive for accepting State-administered testing under implied consent and effectively frustrate the intended effect of Georgia‘s implied consent law. When
If the General Assembly had intended
Hynes‘s claim fails for another reason as well. As noted above,
Upon the written complaint of any certified peace officer of this state or its political subdivisions charged with the duty of enforcing the criminal laws and otherwise as authorized in Code Section 17-5-20 under oath or affirmation, which states facts sufficient to show probable cause that a crime is being committed or has been committed and which particularly describes the place or person, or both, to be searched and things to be seized, any judicial officer authorized to hold a court of inquiry to examine into an arrest of an offender against the penal laws, referred to in this Code section as “judicial officer,” may issue a search warrant . . .
Construing the plain language of
Hynes points out that “there is something perverse about allowing officers to use a search warrant to avoid providing an independent test even if a motorist may have submitted.” We are not persuaded by this argument. Because the effort of obtaining a search warrant is time-consuming and the requirements strict and exacting,7 we do not accept Hynes‘s argument that law enforcement officers will abuse that power in an effort to trick DUI suspects into forfeiting their right to an independent test. Indeed, the facts of this case demonstrate that officers will first seek to use the implied consent procedure.
Hynes further contends that denying an independent test to a DUI suspect who is tested pursuant to a search warrant creates an absurd result whereby only those who waive their Fourth Amendment rights would be entitled to have their blood drawn by qualified medical personnel. The facts of this case, however, do not require us to address this scenario. But see Jackson v. State, 340 Ga. App. 228, 230 (2) (797 SE2d 152) (2017) (under implied consent, there is no requirement that a chemical analysis of blood to detect the presence of drugs be performed by “qualified medical personnel“).
In sum, because Hynes refused to submit to the chemical testing requested by the arresting officer pursuant to
Judgment affirmed. Dillard, P. J., and Ray, J., concur.
DECIDED MAY 31, 2017.
Erin H. Gerstenzang, Andrew S. Fleischman, for appellant.