A16A1807. JACKSON v. THE STATE.
A16A1807
Court of Appeals of Georgia
FEBRUARY 15, 2017
797 SE2d 152
BARNES, Presiding Judge.
Freeman Mathis & Gary, Dana K. Maine, Kevin R. Stone, Coleen D. Hosack, for appellant. Lillian A. Young, pro se.
Jackson argues that the trial court erred in finding that he gave actual consent to have his blood drawn, and erred in holding that
1. Jackson moved to suppress the results of his blood test on the grounds that no exigent circumstances supported a warrantless search and that he did not give actual consent to the blood withdrawal, citing Williams v. State, 296 Ga. 817 (771 SE2d 373) (2015). The Supreme Court in Williams noted that a warrantless search is constitutional only if exigent circumstances are present or the suspect consents to the search, and “mere compliance with statutory implied consent requirements does not, per se, equate to actual, and therefore voluntary, consent on the part of the suspect so as to be an exception to the constitutional mandate of a warrant.” Id. at 822.
The State does not contend that exigent circumstances were present in this case, and therefore the issue is only whether Jackson gave actual consent to the search. Jackson argues that the State failed to produce evidence addressing the issue of actual consent other than strict compliance with the implied consent law, and since mere compliance alone is legally insufficient to establish actual consent, the trial court erred. We disagree.
In conducting a totality of the circumstances analysis, we have considered a host of factors. A consent to search will
(Citations and punctuation omitted.) Jacobs v. State, 338 Ga. App. 743, 748 (2) (791 SE2d 844) (2016).
Here, the trial court correctly found under the totality of the circumstances that Jackson freely and voluntarily consented to the blood test. The arresting officer testified that after he stopped Jackson for speeding and spoke with him, the officer developed probable cause that Jackson was under the influence. He arrested Jackson and read him the implied consent language, and Jackson “agreed to the testing.” That affirmative answer to the question posed by the implied consent language is necessarily part of the totality of the circumstances to be considered by the trial court. The officer further testified that he did not threaten Jackson, make any promises to him, or threaten him with bodily harm. Jackson was transported to the sheriff‘s office, where he was not strapped down but voluntarily extended his arm to have his blood drawn. No evidence indicates that the officer “used fear, intimidation, threat of physical punishment, or lengthy detention to obtain the consent.” (Citation omitted.) Cuaresma v. State, 292 Ga. App. 43, 47 (2) (663 SE2d 396) (2008). Nor does Jackson argue that youth, lack of education, or low intelligence somehow negated the voluntariness of his consent.
Considering the law and the facts in the record, and affording proper deference to the trial court that heard the officer‘s testimony first-hand, we find no error in the trial court‘s denial of Jackson‘s motion to suppress the results of his blood test.
2. Jackson further argues that law enforcement officers are not authorized to request blood testing for drugs but may request “blood testing for alcohol only.”1 The trial court found that “the consent, based upon Georgia‘s statutory scheme for DUI as a whole and [
Jackson‘s argument is based solely on the language of
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. . . .
(Emphasis supplied.) “The fundamental rules of statutory construction require us to construe a statute according to its terms, to give words their plain and ordinary meaning, and to avoid a construction that makes some language mere surplusage.” (Citation and punctuation omitted.) Walker v. State, 290 Ga. 696, 701 (2) (723 SE2d 894) (2012).
We disagree with Jackson‘s view of the plain meaning of this subsection. It does not provide that the State may only draw blood for the purpose of determining the alcoholic content; instead, it states who may draw blood “for the purpose of determining the alcoholic content therein.”
When
. . . [A]ny 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[.]2
(Emphasis supplied.)
(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. . . .
(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. . . .
(Emphasis supplied.)
In this case, Jackson presented no evidence showing that the State-administered blood test for drugs did not comply with the statute. The statutory scheme expressly authorizes law enforcement officers to request a chemical analysis of a person‘s blood for the purpose of determining the presence of drugs, provided the chemical analysis complies with the requirements of
As this case does not involve a blood draw “for the purpose of determining the alcoholic content therein,”
Accordingly, the trial court did not err in denying Jackson‘s motion to suppress on this ground.
Judgment affirmed. Rickman and Self, JJ., concur.
DECIDED FEBRUARY 15, 2017
Harvey S. Wasserman, for appellant.
D. Parks White, District Attorney, Brian J. Atkinson, Assistant District Attorney, for appellee.