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State v. Simmons10/19/2004
In this case, the State of Georgia appeals from the grant of defendant David Simmons's motion to suppress blood alcohol test results in the State Court of Fulton County. The State contends that the trial court erred in granting Simmons's motion. The trial court found that a defendant under arrest for driving under the influence ("DUI"), as here, may withdraw his or her consent to a State-administered blood test at any time before the blood sample has been analyzed, in this case eleven days thereafter. We disagree and reverse.
In reviewing a motion to suppress, we construe the evidence most favorably to uphold the findings and judgment of the trial court. Where the evidence is uncontroverted and there is no question concerning the credibility of witnesses, we conduct a de novo review of the trial court's application of law to the undisputed facts. State v. Stearns, 240 Ga.App. 806, 807, 524 S.E.2d 554 (1999); Joiner v. State, 239 Ga.App. 843, 848(2), 522 S.E.2d 25 (1999). "This Court must construe the evidence most favorably to upholding the trial court's judgment in this regard. [Cits.]" State v. Burke, 230 Ga.App. 392, 393, 496 S.E.2d 755 (1998).
The question of whether one should be permitted to withdraw his or her consent to State-administered chemical testing after being arrested for DUI appears to be one of first impression. While we are mindful that our implied consent law allows a reasonable opportunity to rescind a refusal of a State-administered chemical test, [FN1] see generally, McCafferty v. State, supra; Dep't of Public Safety v. Seay, 206 Ga.App. 71, 73(1), 424 S.E.2d 301 (1992), we find no basis in such law to permit the withdrawal of consent to State testing once consent has been given and is an accomplished fact.
In construing a statute, the determining factor is the intent of the legislature and we look first to the words of the statute to determine what that intent was and if those words be plain and unambiguous and the intent may be clearly gathered therefrom, we need look no further in determining what that intent was.
(Citation and punctuation omitted.) Early v. Early, 269 Ga. 415, 416, 499 S.E.2d 329 (1998). Moreover, "where the language of an Act is plain and unequivocal, judicial construction is not only unnecessary but is forbidden." (Citation omitted.) City of Jesup v. Bennett, 226 Ga. 606, 609(2)(2), 176 S.E.2d 81 (1970). "In all interpretations of statutes, the ordinary signification shall be applied to all words...." OCGA § 1-3-1(b). There is no reason to depart from these rules in this case.
"The General Assembly has declared as a matter of law that persons having an illegal blood alcohol concentration "constitute a direct and immediate threat to the welfare and safety of the general public." (Emphasis supplied.) OCGA § 40-5-55(a)." (Punctuation omitted.) Furcal-Peguero v. State, 255 Ga.App. 729, 731, 566 S.E.2d 320 (2002). Under the implied consent laws, drivers arrested for DUI are deemed to have consented to chemical testing of their bodily fluids, subject only to the requirement that arresting officers notify them of the right to an independent chemical test by a person of their own choosing and that the refusal to submit to State testing is admissible in evidence against them. Id.; State v. Webb, 212 Ga.App. 872, 873, 443 S.E.2d 630 (1994); see OCGA §§ 40-5-55(a); [FN2] 40-5-67.1. " 'OCGA § 40-5-67.1 ... allows the person to withdraw his implied consent by refusing to consent to testing.' Hernandez v. State, 238 Ga.App. 796, 798(2), 520 S.E.2d 698 (1999)." Furcal-Peguero v. State, supra. Consequently, Georgia's implied consent law, on its face, presents two choices to those arrested for DUI: (1) submit to State-administered chemical testing with right to independent testing, if d
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