Cooper v. State, S03A1255.

• Decision Date: 06 October 2003
• Docket Number: No. S03A1255.,S03A1255.
• Citation: 277 Ga. 282,587 S.E.2d 605
• Parties: COOPER v. The STATE.
• Court: Georgia Supreme Court

587 S.E.2d 605

277 Ga. 282

COOPER v. The STATE.

No. S03A1255.

Supreme Court of Georgia.

October 6, 2003.

Reconsideration Denied November 7, 2003.

William D. Healan III, Chestney-Hawkins Law Firm, Sherry Boston, Atlanta, for appellant.

Timothy G. Madison, Dist. Atty., Anthony B. Williams, Asst. Dist. Atty., Thurbert E. Baker, Atty. Gen., Christopher S. Brasher, Asst. Atty. Gen., for appellee.

HINES, Justice.

Carey Don Cooper appeals his conviction for driving under the influence of cocaine.¹ He makes a constitutional challenge to the provision in OCGA § 40-5-55(a), the implied consent statute, requiring chemical testing of the operator of a motor vehicle involved in a traffic accident resulting in serious injuries or fatalities. The statute reads in pertinent part:

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.² (Emphasis added.)

We conclude that the statutory provision is unconstitutional as violative of Article I, Section I, Paragraph XIII of the 1983 Georgia Constitution and the Fourth and Fourteenth Amendments of the Constitution of the United States because it authorizes a search and seizure without probable cause.³ Accordingly, Cooper's conviction cannot stand.

I. Facts

On the evening of August 11, 2000, Cooper was involved in a two-vehicle collision with Johnny Ray Boles on Atlanta Highway in Barrow County. Cooper was heading eastbound when his pickup truck collided head on in the westbound lane with the westbound pickup truck driven by Boles. Emergency medical technicians came to the scene and transported Cooper and Boles to different hospitals before a Georgia State Patrol trooper arrived. The trooper investigated the scene and observed gouges in the road consistent with a head-on collision. The trooper went to the hospital where Boles had been taken and learned that Boles had sustained a broken arm. Because of the broken bone, the trooper collected a blood sample from Boles pursuant to OCGA § 40-5-55(a), and then went to the hospital where Cooper had been taken in order to get a blood sample from him. The trooper read Cooper the implied consent notice for suspects age 21 or over,⁴ 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 OCGA § 40-5-55(a) mandated that he do so inasmuch as Cooper was involved in a traffic accident resulting in serious injuries. The Georgia State Crime Lab determined that Cooper's blood sample tested positive for cocaine, benzoylecgonine, and hydrocodone.

Prior to trial, Cooper moved to suppress the blood test results on the basis, inter alia, that to the extent that OCGA § 40-5-55 allowed the State to require a person to consent to a search of his or her bodily substances without probable cause, the statute was unconstitutional under the State and Federal Constitutions. The superior court denied the motion after finding that the statute did not violate the unreasonable search and seizure prohibitions of either the State or Federal Constitutions.⁵

II. The Constitutional Attack and This Court's Role on Review

"`In order to raise a question as to the constitutionality of a "law," at least three things must be shown: (1) The statute or the particular part or parts of the statute which the party would challenge must be stated or pointed out with fair precision; (2) the provision of the Constitution which it is claimed has been violated must be clearly designated; and (3) it must be shown wherein the statute, or some designated part of it, violates such constitutional provision.'" [Wallin v. State, 248 Ga. 29, 30(1), 279 S.E.2d 687 (1981) (quoting DeKalb County v. Post Properties, 245 Ga. 214, 218, 263 S.E.2d 905 (1980)).]

Chester v. State, 262 Ga. 85, 88(3), 414 S.E.2d 477 (1992). Cooper has adequately raised his constitutional challenge.

When a statute is under constitutional attack, this Court must presume it to be constitutional until it is established that the statute "`manifestly infringes upon a constitutional provision or violates the rights of the people....'" Love v. State, 271 Ga. 398, 400(2), 517 S.E.2d 53 (1999), quoting Miller v. State, 266 Ga. 850, 852(2), 472 S.E.2d 74 (1996).

III. Search and Seizure and Probable Cause

The United States and Georgia Constitutions both protect against unreasonable searches and seizures. U.S. Const. Amends. IV, XIV; Ga. Const. Art. I, Sec. I, Par. XIII; King v. State, 276 Ga. 126, 128, 577 S.E.2d 764 (2003). Under OCGA § 40-5-55(a), because Cooper was involved in an accident resulting in "serious injuries," as defined in subsection (c) of the statute, he was deemed by operation of law to have given consent to the administered blood test to determine if there was the presence of alcohol or any other drug. Stevenson v. State, 264 Ga. 892, 893(1), 453 S.E.2d 18 (1995). See also, Pilkenton v. State, 254 Ga.App. 127(1), 561 S.E.2d 462 (2002). "A suspect's Fourth Amendment right to be free of unreasonable searches and seizures applies to the compelled withdrawal of blood." Welch v. State, 254 Ga. 603, 607(3), 331 S.E.2d 573 (1985), citing Schmerber v. California, 384 U.S. 757, 760-765, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966). So too is the extraction of blood a search within the meaning of the Georgia Constitution. Strong v. State, 231 Ga. 514, 202 S.E.2d 428 (1973).

In Schmerber v. California, supra, the petitioner was convicted of the criminal offense of driving an automobile while under the influence of intoxicating liquor. He was arrested at a hospital while receiving treatment for injuries suffered in an accident involving the automobile that he had apparently been driving. At the direction of a police officer, a blood sample was then withdrawn from him by a hospital physician. The chemical analysis of the blood sample showed a percent by weight of alcohol in his blood at the time of the offense indicating intoxication, and the report of this analysis was admitted in evidence at the trial. The petitioner objected to receipt of this evidence on the ground, inter alia, that it violated his right not to be subjected to unreasonable searches and seizures in contravention of the Fourth Amendment.

After stating that "[t]he overriding function of the Fourth Amendment is to protect personal privacy and dignity against unwarranted intrusion by the State," the United States Supreme Court framed the issues before it as whether the police were justified in requiring Schmerber to submit to the blood test, and whether the means and procedures employed in taking Schmerber's blood respected relevant Fourth Amendment standards of reasonableness. Schmerber v. California at 767-768, 86 S.Ct. 1826. The Court found that there was plainly probable cause for the officer to arrest Schmerber and charge him with driving an automobile while under the influence of intoxicating liquor, and that the attempt to secure evidence of blood-alcohol content in that case was an appropriate incident to Schmerber's arrest. Id. at 768, 771, 86 S.Ct. 1826. Consequently, the Court concluded that there was no showing of a violation of Schmerber's right under the Fourth and Fourteenth Amendments to be free of unreasonable searches and seizures. Id. at 772, 86 S.Ct. 1826. But the Court cautioned,

It bears repeating, however, that we reach this judgment only on the facts of the present record. The integrity of an individual's person is a cherished value of our society. That we today hold that the Constitution does not forbid the States minor intrusions into an individual's body under stringently limited conditions in no way indicates that it permits more substantial intrusions, or intrusions under other conditions.

Id. at 772, 86 S.Ct. 1826.

It is plain that,

the Fourth Amendment does not proscribe all searches and seizures, but only those that are unreasonable. United States v. Sharpe, 470 U.S. 675, 682, 105 S.Ct. 1568, 1573, 84 L.Ed.2d 605 (1985); Schmerber v. California, 384 U.S., at 768. What is reasonable, of course, "depends on all of the circumstances surrounding the search or seizure and the nature of the search or seizure itself." United States v. Montoya de Hernandez, 473 U.S. 531, 537, 105 S.Ct. 3304, 3308, 87 L.Ed.2d 381 (1985). Thus, the permissibility of a particular practice "is judged by balancing its intrusion on the individual's Fourth Amendment interests against its promotion of legitimate governmental interests." Delaware v. Prouse, 440 U.S. 648, 654, 99 S.Ct. 1391, 59 L.Ed.2d 660 (1979); United States v. Martinez-Fuerte, 428 U.S. 543, 96 S.Ct. 3074, 49 L.Ed.2d 1116 (1976). In most criminal cases, we strike this balance in favor of the procedures described by the Warrant Clause of the Fourth Amendment. See United States v. Place, [462 U.S. 696, 701, and n. 2, 103 S.Ct. 2637, 77 L.Ed.2d 110 (1983)]; United States v. United States District Court, 407 U.S. 297, 315, 92 S.Ct. 2125, 2135-2136, 32 L.Ed.2d 752 (1972). Except in certain well-defined circumstances, a search or seizure in such a case is not reasonable unless it is accomplished pursuant to a judicial warrant issued upon probable cause. See, e.g., Payton v. New York, 445 U.S. 573, 586, 100 S.Ct. 1371, 1380, 63 L.Ed.2d 639 (1980); Mincey v. Arizona, 437 U.S. 385, 390, 98 S.Ct. 2408, 2412, 57 L.Ed.2d 290 (1978).

Skinner v. Railway Labor Executives' Assn., 489 U.S. 602, 619, 109 S.Ct. 1402, 103 L.Ed.2d 639 (1989). Indeed, this Court stated in Adams v. State, 269 Ga. 405,...