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Collier v. State4/5/2004
77).
FN17. OCGA § 40-5-55(b).
By threatening Collier with forcible testing, the police here misled Collier about the consequences of refusing to consent to the requested tests. Where police mislead an accused about his implied consent rights, any consent based upon the misrepresentation is invalid. Cooper v. State. [FN18] All results of those tests should therefore be *765 excluded. Id.; see State v. Terry. [FN19]
FN18. Cooper v. State, 277 Ga. 282, 292(VI), 587 S.E.2d 605 (2003).
FN19. State v. Terry, 236 Ga.App. 248, 251, 511 S.E.2d 608 (1999).
Collier made the requisite strong showing that a motion to suppress would have been granted. Accordingly, his counsel's failure to contest this evidence was deficient. The admission of this evidence unquestionably harmed Collier's defense. Accordingly, we hold that the court clearly erred in determining that Collier did not meet his burden of showing ineffective assistance. We reverse that ruling and remand the case for a new trial on the drug-related convictions, which are Counts 1, 2, 3, and 4 (vehicular homicide in the first degree), Count 7 (driving under the influence of methamphetamine to the extent it was less safe to drive), and Count 8 (driving under the influence of amphetamine to the extent it was less safe to drive). We vacate the sentencing rulings on the remaining convictions, which he has not challenged, and remand the case for resentencing on these counts.
Judgment on motion for new trial reversed.
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