State v. Jewell, A97A1297
| Decision Date | 02 October 1997 |
| Docket Number | No. A97A1297,A97A1297 |
| Parties | , 97 FCDR 3735 The STATE v. JEWELL. |
| Court | Georgia Court of Appeals |
Timothy G. Madison, District Attorney, Robin R. Riggs, Assistant District Attorney, for appellant.
Kathleen J. Anderson, Athens, for appellee.
Defendant Jewell is charged with a violation of the Georgia Controlled Substances Act (possession of cocaine); driving while the alcohol concentration in his blood was more than .10 grams; two counts of driving under the influence; driving without proof of insurance; weaving over roadway (OCGA § 40-6-48(1)); and driving while license suspended. When stopped on December 24, 1995, defendant was read the implied consent warning found in OCGA § 40-5-67.1(b)(2) and defendant submitted to a blood test which was positive for benzoylecgonine, a metabolite of cocaine. Defendant filed a motion to suppress the test results with regard to the charge of possession of cocaine on the theory that the use of this information to support the possession charge was beyond the scope of the consent he had given. Defendant's motion to suppress evidence was granted and the State appeals. Held:
We affirm. The scope of the consent granted by a defendant to a test to determine alcohol or drug content of blood, as well as the legislative intent embodied in the implied consent statutes, may be derived from the wording of the implied consent warning read to a defendant. See in this regard State v. Gerace, 210 Ga.App. 874(1), 437 S.E.2d 862, where a defendant was read the then current implied consent warning asking him to submit to a blood test "for purposes of determining alcohol or drug content" and was held to have not consented to use of the blood sample for a deoxyribonucleic acid (DNA) test.
Since the decision in Gerace, the implied consent warning has been amended so that defendant Jewell was requested to submit to a test "for the purpose of determining if you are under the influence of alcohol or drugs." OCGA § 40-5-67.1(b)(2). Such representations concerning the nature of the test to be performed or the use to which the test results will be applied are binding upon the State. The decision in Gerace rests upon Beasley v. State, 204 Ga.App. 214, 216-217(1), 419 S.E.2d 92, in which a person was charged with possession of cocaine after testing of urine given pursuant to a consent for the purpose of determining bond. "This court held that consent for one purpose does not mean consent for ANY purpose, and therefore the consent was not the product of an essentially free and unrestrained choice." State v. Gerace, 210 Ga.App. 874, 875(2), 437 S.E.2d 862, supra. This reasoning also governs the case sub judice. The trial court did not err in granting defendant Jewell's motion to suppress.
A number of cases cited by the State do not involve a consent premised on the incomplete and thus deceptively misleading information such as received by defendant Jewell, as well as by the defendants in Gerace and Beasley. In Green v. State, 260 Ga. 625, 626(2), 627, 398 S.E.2d 360, a defendant was charged with possession of cocaine after providing a urine...
To continue reading
Request your trial
-
Pace v. State
...and blood would be used only in the Hudson investigation. See State v. Long, 232 Ga.App. 445, 502 S.E.2d 298 (1998); State v. Jewell, 228 Ga.App. 825, 492 S.E.2d 706 (1997); State v. Gerace, 210 Ga.App. 874, 437 S.E.2d 862 (1993); Beasley v. State, 204 Ga.App. 214(1), 419 S.E.2d 92 (1992). ......
-
Board of Com'rs of Effingham County v. Farmer
... ... Farmer brought suit averring violation of his rights to procedural due process, a state law breach of contract claim, and state law slander claims against two of the individual ... ...
-
Page v. State
...to name the specific controlled substance). 20. Cooper v. State, 277 Ga. 282, 283, n. 1, 587 S.E.2d 605 (2003); State v. Jewell, 228 Ga.App. 825, 492 S.E.2d 706 (1997). 21. See Gantt, supra at 106(2), 587 S.E.2d 255; Broski, supra ("if a defendant is not misled to his prejudice by any imper......
-
Turpin v. Helmeci
...not for a possession charge, and that counsel was ineffective in not raising that issue. The State argues that State v. Jewell, 228 Ga.App. 825, 492 S.E.2d 706 (1997), which was decided seven months after Helmeci's trial, was the first case to definitively hold that it is a Fourth Amendment......