Bailey v. State
| Citation | 790 S.E.2d 98,338 Ga.App. 428 |
| Decision Date | 13 July 2016 |
| Docket Number | A16A0200 |
| Parties | Bailey v. The State. |
| Court | Georgia Court of Appeals |
David C. Walker, Jeremiah Roberts, for Appellant.
David Parks White, Lawrenceville, Brian Joseph Atkinson, for Appellee.
Elmer Lamar Bailey was with his cousin when the vehicle they were traveling in crossed the center line of a highway, struck an embankment, and overturned. Bailey, who appeared to be the driver of the vehicle, was trapped in the car and seriously injured. After an ambulance took Bailey to the hospital, an investigating officer found a box containing drugs next to the overturned vehicle.
As a result, Bailey was charged with possession of methamphetamine,1 possession of marijuana,2 and possession of drug-related objects.3
Bailey was unconscious when a state trooper arrived at the hospital. The state trooper ordered hospital staff to obtain samples of Bailey's blood and urine for drug and alcohol testing. Based on the results of those tests and on the accident itself, Bailey was also charged with DUI (per se),4 DUI (less safe) (combined influence),5 and failure to maintain lane.6 The trial court denied Bailey's motion to suppress the results of the blood and urine tests. After a jury found him guilty of all counts, the trial court entered a judgment of conviction, merging the two DUI counts for purposes of sentencing. The court denied his motion for new trial, and Bailey appeals.
Because Bailey does not raise any issues with respect to his convictions for possession of the drugs and drug-related materials found next to the car or for failure to maintain lane, we do not address those convictions. We reverse the trial court's order denying Bailey's motion to suppress, reverse the DUI (per se) conviction, and vacate the DUI (less safe) guilty verdict based on the United States Supreme Court's opinion in Missouri v. McNeely7 and the Supreme Court of Georgia's decision in Williams v. State.8
Bailey argues on appeal that the trial court should have suppressed his blood and urine test results because the State did not comply with the implied consent statute and because he was unconscious at the time of testing and unable to give actual consent. We review the trial court's factual findings in a ruling on a motion to suppress for clear error, but we owe no deference to the trial court's application of the law to undisputed facts.9
In his motion to suppress, Bailey argued that the seizure of samples of his blood and urine was conducted in the absence of a warrant or an exception to the warrant requirement and in violation of the Fourth Amendment and the Georgia Constitution. At the suppression hearing, the State presented testimony from Deputy Beard of the Franklin County Sheriff's Office, who responded to the scene of the one-car accident, and then-Trooper Roberts of the Georgia State Patrol, who ordered samples taken of Bailey's blood and urine at the hospital.
The trial court denied the motion to suppress, finding that Bailey's bodily fluids were collected as a result of a traffic accident resulting in serious injuries, as defined by OCGA § 40–5–55 (c). The trial court concluded that “in conjunction with a finding of probable cause of the offense of D.U.I. by the investigating officer, [Trooper Roberts] was legally authorized to collect blood and urine from [Bailey] without first placing [Bailey] under arrest per the holding of Snyder v. State.”10
1. Bailey argues that the State did not comply with Georgia's Implied Consent statute because he was not advised of his rights and given an opportunity to refuse testing, as required by the implied consent notice.
OCGA § 40–5–67.1 contains the following language regarding the reading of the implied consent notice:
At the time a chemical test or tests are requested, the arresting officer shall select and read to the person the appropriate implied consent notice from the following: (1) Implied consent notice for suspects under age 21: ... (2) Implied consent notice for suspects age 21 or over: ... (3) Implied consent notice for commercial motor vehicle driver suspects: ... If any such notice is used by a law enforcement officer to advise a person of his or her rights regarding the administration of chemical testing, such person shall be deemed to have been properly advised of his or her rights.... Such notice shall be read in its entirety but need not be read exactly so long as the substance of the notice remains unchanged.11
While this statute provides no exception for the reading of the implied consent notice, Section 40–5–67.1 must be construed in conjunction with OCGA § 40–5–55.12
Under subsection (a) of OCGA § 40–5–55, “any person who operates a motor vehicle ... shall be deemed to have given consent ... to a chemical test or tests of his ... bodily substances for the purpose of determining the presence of alcohol or any other drug, if arrested [for DUI] or if such person is involved in any traffic accident resulting in serious injuries or fatalities .”13 Subsection (b) adds that any person who is unconscious shall not be deemed to have withdrawn the consent provided by subsection (a).14 A “ ‘traffic accident resulting in serious injuries or fatalities' means any motor vehicle accident in which ... one or more persons suffered a fractured bone ... or loss of consciousness.”15
Here, Trooper Roberts had reasonable grounds to believe that Bailey had operated a motor vehicle, and that while doing so Bailey was involved in a traffic accident resulting in serious injuries. Although it is clear only that Bailey was unconscious at the time the samples were taken and not whether he lost consciousness as a result of the accident, evidence introduced at trial16 showed that Bailey's femur was fractured in the accident. Thus, he is deemed to have given consent to testing under the statute, and he did not withdraw this consent by virtue of being unconscious.17 Reading OCGA § 40–5–55 (b) with OCGA § 40–5–67.1, we find that Trooper Roberts was not required to give the implied consent notice to the unconscious Bailey.18 We thus reject Bailey's argument that the State failed to comply with the statute.
2. Bailey also contends that the court must rely on the totality of the circumstances, not just on compliance with the implied consent statute, in showing that there was actual, voluntary consent. Bailey relies on the Georgia Supreme Court's recent decision in Williams v. State.19
(a) As an initial matter, we reject the State's argument that Bailey waived the actual consent/Williams issue by failing to raise it prior to the motion for new trial. The State contends that Bailey argued only that the police did not comply with the implied consent statute and did not argue that the consent was not actual and voluntary.
In Williams, the Supreme Court of Georgia held that mere compliance with the statutory implied consent requirements did not equate to actual and voluntary consent so as to be an exception to the constitutional mandate of a warrant.20 Williams was not decided until March 2015,21 after Bailey filed his motions to suppress and for new trial but before the new trial hearing. Under the pipeline rule, however, a new rule of criminal procedure will be applied to pending cases, so long as the issue was preserved for appellate review.22
“[A]ll motions to suppress should be governed by O.C.G.A. § 17–5–30 ... to the extent possible.”23 Under that provision, a defendant may move to suppress evidence either because the warrantless search was illegal or, where there was a warrant, on one of three articulated grounds.24 Either way, “[t]he motion shall be in writing and state facts showing that the search and seizure were unlawful.”25
Bailey argued in his motion to suppress that the search and seizure of his blood and urine by Trooper Roberts at the hospital were conducted without a warrant or an exception to the warrant requirement and in violation of the Fourth Amendment. At the suppression hearing, he explained further that he was unconscious at the time of the search and seizure. “The suppression motion must be sufficient to put the State on notice as to the type of search or seizure involved, which witness to bring to the hearing on the motion, and the legal issues to be resolved at that hearing.”26 The motion filed by Bailey was sufficient to put the State on notice that the seizure of his blood and urine was at issue and that it was necessary to present evidence to justify the warrantless search.27 Bailey preserved the consent issue and is entitled to rely on Williams because his case was in the pipeline when it was decided.28
(b) As the trial court noted and as the State argues, we have previously found constitutional the taking of bodily substances from an unconscious suspect. In Gilliam v. State,29 which we decided in 2008, we held that a warrantless search and seizure was constitutional where the investigating officer had probable cause to believe that the defendant had been driving while under the influence due to his unsafe act of failing to yield and the smell of alcohol on his breath.30 Because the defendant was involved in an accident resulting in serious injuries, we affirmed the denial of his motion to suppress the results of his blood tests, even though his blood was drawn while he was unconscious.31
In 2013, however, the United States Supreme Court decided McNeely,32 which held that “while the natural dissipation of alcohol in the blood may support a finding of exigency in a specific case, as it did in Schmerber [v. California] ,33 it does not do so categorically.”34 In McNeely, a blood sample had been taken from the suspect, despite his refusal to submit to such testing.35 The Court noted the “advances in the 47 years since Schmerber was decided that allow for the more expeditious processing of warrant applications, particularly in contexts like drunk-driving investigations where the evidence...
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