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Hough v. State10/3/2005
Because both of these appeals regard the constitutionality and construction of Georgia's Implied Consent Statute, OCGA § 40-5-55, they have been consolidated for our review. In Case No. S05G0311, Scott Hough contends that the Court of Appeals erred in its determination that the trial court properly denied his motion to suppress the results of a test of his blood following a traffic accident. See Hough v. State, 269 Ga. App. 744 (605 SE2d 43) (2004). In Case No. S05G0640, the State argues that the Court of Appeals erred by reversing the trial court and finding that Bryan Reid Handschuh's refusal to submit to a blood test following a traffic accident should have been suppressed. See Handschuh v. State, 270 Ga. App. 676 (607 SE2d 899) (2004) (disapproving Hough, supra).
Specifically, these appeals present two related questions: (1) whether, pursuant to the doctrine of implied consent as set forth under OCGA § 40-5-55 (a) and analyzed in Cooper v. State, 277 Ga. 282 (587 SE2d 605) (2003), the State may constitutionally require a suspect who has not yet been arrested to submit to a chemical test of his blood, breath, urine, or other bodily substances where the suspect has been involved in a traffic accident resulting in serious injuries or fatalities and the investigating law enforcement officer has probable cause to believe that the suspect was driving under the influence of alcohol or other drugs; and (2) whether, in circumstances where there has been no traffic accident resulting in serious injuries or fatalities but the law enforcement officer has probable cause to believe that the suspect was driving under the influence of alcohol or other drugs, the suspect must be arrested prior to a reading of implied consent in order for the suspect's refusal to submit to testing to be used against him in a subsequent trial. For the reasons that follow, we answer both of these questions in the affirmative.
1. (a) In Cooper, we considered the constitutionality of that portion of OCGA § 40-5-55 (a) which states
ny 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 such person is involved in any traffic accident resulting in serious injuries or fatalities.
We held: " o the extent that OCGA § 40-5-55 (a) requires chemical testing of the operator of a motor vehicle involved in a traffic accident resulting in serious injuries or fatalities regardless of any determination of probable cause, it authorizes unreasonable searches and seizures in violation of the State and Federal Constitutions." (Emphasis supplied.) Id. at 291 (V).
We further explained that the Implied Consent Statute grants a suspect an opportunity, not afforded him by our constitution, to refuse to take a blood-alcohol test. This Court's use of the term "suspect" in regard to the Implied Consent Statute brings into sharp focus the flaw in that portion of the statute compelling chemical testing of the person merely by virtue of involvement in a traffic accident resulting in serious injury or fatality. There is no requirement of individualized suspicion, much less probable cause, that would render the person "suspect" of impaired driving.
(Citations and punctuation omitted.) Id. at 290.
Cooper makes it clear that OCGA § 40-5-55 (a) is unconstitutional to the extent that it could be interpreted to require an individual to submit to chemical testing solely because that individual was involved in a traf
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