 |
 |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|
|
|
|
State v. Bass6/6/2005
RUFFIN, C. J., JOHNSON, P. J., BARNES, J.
The issue in this appeal is whether the trial court properly suppressed evidence of blood test results of a person suspected of driving a motorcycle while under the influence of alcohol. Because the driver was not arrested prior to the state taking and testing his blood, we hold that the trial court correctly ruled that evidence of the test results is inadmissible.
On May 14, 2004, shortly before 9:30 in the evening, Samuel Bass was riding his motorcycle in Fayette County. As he headed south on Westbridge Road, Tracey Paschal was driving west in a Ford Explorer on Westbridge Circle, which ends at Westbridge Road. Paschal stopped at the intersection and then turned left into the southbound lane of Westbridge Road. She drove directly in front of Bass, who collided with the Explorer and was thrown from his motorcycle.
A sheriff's deputy arrived at the accident scene, where emergency medical personnel were already attending to Bass. The deputy did not attempt to speak with Bass, who, at approximately 10:30 p.m., was taken by helicopter to a hospital. The deputy later went to the hospital, but was unable to speak to Bass because he was unconscious. The deputy was told that emergency medical personnel had smelled alcohol on Bass' breath and the deputy also smelled alcohol coming from Bass' breath. The deputy did not place Bass under arrest, but at 11:00 p.m., he did read the implied consent warning to the unconscious man. A few minutes later, a nurse drew blood from Bass' right arm.
On July 29, 2004, the deputy got the results of the blood test back from the crime laboratory. Based on those results, he cited Bass for driving under the influence of alcohol. On August 1, 2004, Bass came to the sheriff's office and was arrested. On October 20, 2004, the state charged Bass by accusation with driving under the influence of alcohol.
Bass subsequently moved to suppress evidence of the blood test results because, among other things, he had not been placed under arrest prior to the deputy's reading of the implied consent warning to him. The trial court granted the motion, and the state appeals.
1. The state argues that because Bass was unconscious, he did not have to be under arrest at the time the implied consent notice was read to him. In support of this contention, the state cites OCGA § 40-5-55 (b), which provides:
Any person who is dead, unconscious, or otherwise in a condition rendering such person incapable of refusal shall be deemed not to have withdrawn the consent provided by subsection (a) of this Code section, and the test or tests may be administered, subject to Code Section 40-6-392.
The state is correct that this code section plainly provides that an unconscious person is deemed not to have withdrawn the implied consent to a blood test that is provided by OCGA § 40-5-55 (a). However, contrary to the state's claims, this "unconscious person" provision of OCGA § 40-5-55 (b) does not wholly eliminate the implied consent requirements of OCGA § 40-5-55 (a). On the contrary, the plain language of subsection (b) expressly cites, and is premised on, the consent provided by subsection (a). Thus, the clear language of the entire code section dictates that before an unconscious person can be deemed not to have withdrawn his implied consent, that implied consent must first exist as provided by subsection (a).
Pursuant to OCGA § 40-5-55 (a), a person who drives a motor vehicle in this state is deemed to have given consent to a chemical test of his blood for the purpose of determining the presence of alcohol or other drugs if he is arrested for any offense arising ou
Page 1 2 Georgia DUI Attorneys
DUI Lawyers
|
| |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|