 |
 |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|
|
|
|
Handschuh v. State12/1/2004
6-391 so as to permit the chemical testing that occurred. Further, as in Cooper, Buchanan consented to having his blood tested after being told that "the officer `had to take it anyway' given the seriousness of the accident. [Thus,] Buchanan did not believe he had a choice."
Here, on the other hand, Handschuh was given a choice and he refused. Moreover, there was the possibility of serious injury as well as probable cause to suspect Handschuh of DUI. Based upon these factual and legal distinctions, the majority plainly misapplies our decision in Buchanan to the circumstances of this case.
4. To me, the largest flaw in the majority and special concurrence's reasoning is reflective of a general myopia that will not allow the specific factual circumstances of a case to impact on the proper application of the appropriate legal principle. Cooper held as unconstitutional DUI testing based solely on injury without probable cause to establish DUI; so, the majority finds unconstitutional DUI testing based on injury with probable cause to establish DUI. Buchanan contained a statement regarding the inapplicability of implied consent in light of the officer's failure to arrest for DUI or to establish that Buchanan was drunk or injured; so, the majority finds that a suspect must be arrested for DUI before consent may be implied, even when an officer establishes probable cause to find a suspect drunk or injured. OCGA § 40-5-55 (a) states that all Georgians who operate a motor vehicle impliedly consent to the administration of a chemical test simply through exercising the privilege of driving, which test will be administered if "arrested"; so, the majority finds that one must be arrested before implied consent even arises and thus before a suspect can refuse testing. The law does not exist in a vacuum, and the facts of a case are irrelevant only in a nonexistent abstract world. No good can come from the failure to recognize that the application of appropriate legal principles is contingent upon the facts.
For these reasons, I respectfully dissent.
I am authorized to state that Chief Judge Smith, Presiding Judge Andrews, Presiding Judge Johnson and Judge Adams join in this dissent.
Page 1 2 3 4 5 6 7 8 9 Georgia DUI Attorneys
DUI Lawyers
|
| |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|