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Cooper v. State10/6/2003
Carey Don Cooper appeals his conviction for driving under the influence of cocaine. 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. (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. 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, 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.
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, violate
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