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Oliver v. State7/1/2004
s driving in violation of OCGA § 40-6-391, Cooper was offered two choices, neither of which the trooper was legally authorized to offer. Consequently, the trooper completely misled Cooper, albeit unintentionally, about his implied consent rights, and any consent based upon the misrepresentation is invalid. Pilkenton v. State; [FN8] see also Commonwealth v. Kohl. [FN9] The results of the blood test procured pursuant to the implied consent statute must be excluded.
FN8. Pilkenton v. State, 254 Ga.App. 127(1), 561 S.E.2d 462 (2002).
FN9. Commonwealth of Penn. v. Kohl, 532 Pa. 152, 159, n. 1, 615 A.2d 308 (1992).
Cooper, supra at 291-292(VI), 587 S.E.2d 605.
In this case, Oliver was suspected of violating OCGA § 40-6-391 the first time his implied consent rights were read to him and under arrest for such violation the second time his rights were read. Implied consent warnings were not administered solely pursuant to OCGA § 40-5-55, as in Cooper, and, at the time that a test was conducted of Oliver's blood, probable cause that he had been driving under the influence was established. As such, Cooper does not control the case at hand. For the same reason, Buchanan v. State [FN10] may also be distinguished from the case at hand.
FN10. Buchanan v. State, 264 Ga.App. 148, 589 S.E.2d 876 (2003).
Judgment affirmed.
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