Hough v. State

• Decision Date: 03 October 2005
• Docket Number: No. S05G0311.,No. S05G0640.,S05G0311.,S05G0640.
• Citation: 620 S.E.2d 380,279 Ga. 711
• Parties: HOUGH v. STATE. State v. Handschuh.
• Court: Georgia Supreme Court

279 Ga. 711

620 S.E.2d 380

HOUGH v. STATE.

State v. Handschuh.

No. S05G0311.

No. S05G0640.

Supreme Court of Georgia.

October 3, 2005.

COPYRIGHT MATERIAL OMITTED

Monte Kevin Davis, Victor Paul Valmus, Atlanta, Jamie K. Inagawa, Sol. Gen., for Appellant.

Robert Stokely, Solicitor, Sandra Nadeau Wisenbaker, Newman, Joseph Scott Key, Sexton & Morris, P.C., Stockbridge, for Appellee.

Gerald N. Blaney, Jr., Sol. Gen., Gary S. Vey, Asst. Sol. Gen., Jeffrey Paul Dwiatkowski, Asst. Sol. Gen., Jason Ross Samuels, Asst. Sol. Gen., amicus appellant.

MELTON, Justice.

Because both of these appeals regard the constitutionality and construction of Georgia's Implied Consent Statute, OCGA § 40-5-55, they have been consolidated for our review. In Case No. S05G0311, Scott Hough contends that the Court of Appeals erred in its determination that the trial court properly denied his motion to suppress the results of a test of his blood following a traffic accident. See Hough v. State, 269 Ga.App. 744, 605 S.E.2d 43 (2004). In Case No. S05G0640, the State argues that the Court of Appeals erred by reversing the trial court and finding that Bryan Reid Handschuh's refusal to submit to a blood test following a traffic accident should have been suppressed. See Handschuh v. State, 270 Ga.App. 676, 607 S.E.2d 899 (2004) (disapproving Hough, supra).

Specifically, these appeals present two related questions: (1) whether, pursuant to the doctrine of implied consent as set forth under OCGA § 40-5-55(a)¹ and analyzed in Cooper v. State, 277 Ga. 282, 587 S.E.2d 605 (2003), the State may constitutionally require a suspect who has not yet been arrested to submit to a chemical test of his blood, breath, urine, or other bodily substances where the suspect has been involved in a traffic accident resulting in serious injuries or fatalities and the investigating law enforcement officer has probable cause to believe that the suspect was driving under the influence of alcohol or other drugs; and (2) whether, in circumstances where there has been no traffic accident resulting in serious injuries or fatalities but the law enforcement officer has probable cause to believe that the suspect was driving under the influence of alcohol or other drugs, the suspect must be arrested prior to a reading of implied consent in order for the suspect's refusal to submit to testing to be used against him in a subsequent trial. For the reasons that follow, we answer both of these questions in the affirmative.

1. (a) In Cooper, we considered the constitutionality of that portion of OCGA § 40-5-55(a) which states

[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 such person is involved in any traffic accident resulting in serious injuries or fatalities.

We held: "[T]o the extent that OCGA § 40-5-55(a) requires chemical testing of the operator of a motor vehicle involved in a traffic accident resulting in serious injuries or fatalities regardless of any determination of probable cause, it authorizes unreasonable searches and seizures in violation of the State and Federal Constitutions." (Emphasis supplied.) Id. at 291(V), 587 S.E.2d 605.

We further explained that the Implied Consent Statute

grants a suspect an opportunity, not afforded him by our constitution, to refuse to take a blood-alcohol test. This Court's use of the term "suspect" in regard to the Implied Consent Statute brings into sharp focus the flaw in that portion of the statute compelling chemical testing of the person merely by virtue of involvement in a traffic accident resulting in serious injury or fatality. There is no requirement of individualized suspicion, much less probable cause, that would render the person "suspect" of impaired driving.

(Citations and punctuation omitted.) Id. at 290, 587 S.E.2d 605.

Cooper makes it clear that OCGA § 40-5-55(a) is unconstitutional to the extent that it could be interpreted to require an individual to submit to chemical testing solely because that individual was involved in a traffic accident resulting in serious injuries or fatalities. On the other hand, where an individual has been involved in a traffic accident resulting in serious injuries or fatalities and the investigating law enforcement officer has probable cause to believe that the individual was driving under the influence of alcohol or other drugs, the constitutional infirmities at play in Cooper are no longer present, and the ensuing search is both warranted and constitutional. Due to the existence of probable cause, the individual being subjected to a search is, in fact, a "suspect" as contemplated by the statute.

Moreover, we must keep in mind that the search in question must be analyzed 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). The stated purpose of OCGA § 40-5-55 is to protect the citizens of this State from individuals driving under the influence because these drivers constitute "a direct and immediate threat to the welfare and safety of the general public." This extremely important purpose, in turn, must be balanced against the intrusion created by chemical testing on the individual's Fourth Amendment rights where the individual has been involved in a traffic accident involving serious injuries or fatalities and the investigating officer has probable cause to believe that the individual was driving under the influence. In considering this balance, it must further be remembered that the Fourth Amendment was designed to protect individuals only from unreasonable searches. 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. 757, 768, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966). In the scenario described here, however, given the presence of probable cause, the requirement that a person submit to a chemical test is inherently reasonable in the balance, and the Fourth Amendment's "probable cause yardstick" measures up to be constitutionally sound. See Adams v. State, 269 Ga. 405, 407(1), 498 S.E.2d 268 (1998).

Furthermore, nothing in OCGA § 40-5-55 requires a DUI suspect to be arrested in order to trigger his or her implied consent to testing following a traffic accident resulting in serious injuries or fatalities. This makes inherent sense, because in such cases, a DUI suspect may be so incapacitated that a formal arrest would be unwarranted under the circumstances. Furthermore, an individual involved in such an accident, rather than someone who is merely stopped while driving, is on notice that some inquiry will be made regarding the cause of and responsibility for the accident, and this knowledge would give context to the subsequent reading of implied consent rights.

(b) In Case No. S05C0311, Hough argues that he was not properly placed under arrest prior to the reading of his implied consent rights. The record shows, however, that prior to the reading of his implied consent rights, Hough had been involved in a traffic accident resulting in serious injuries to himself² and the officer investigating the accident had probable cause to believe that Hough had been driving under the influence.³ Under these circumstances, as set forth above, the investigating officer was not required to arrest Hough prior to the reading of implied consent, and Hough's consent to the blood test was valid. Accordingly, Hough's argument fails, and his conviction must stand. We therefore affirm the Court of Appeals' judgment in this case.

2. (a) In circumstances where there has been no traffic accident resulting in serious injuries or fatalities, but the investigating law enforcement officer has probable cause to believe that the suspect was driving under the influence of alcohol or other drugs, the statutory mandates of OCGA § 40-5-55 are quite different and require an arrest prior to any reading of implied consent rights.

OCGA § 40-5-55(a), in relevant part, provides

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.

(Emphasis supplied.) OCGA § 40-6-392(a)(4) also states that "[t]he arresting officer at the time of arrest shall advise the person arrested of his rights to a chemical test or tests in accordance with this Code section." In addition, OCGA § 40-5-67.1, which sets forth the text of the implied consent warnings, contemplates that these notices will be read after arrest. For example, OCGA § 40-5-67.1(c) begins: "If a person under arrest . . . submits to a chemical test upon the request of a law enforcement officer . . ." (Emphasis supplied.) Code Section 40-5-67.1(d) similarly starts: "If a person under arrest . . . refuses, upon the request of a law enforcement officer, to submit to a chemical test. . ." (Emphasis supplied.) Finally, the text of the implied consent warnings themselves contemplate an arrest. All three versions of the statutory implied consent warnings⁴ include the following admonition: "Your refusal to submit to the required testing may be offered into evidence against you at trial." This admonition is more meaningful in the context where an arrest has occurred. After an...