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State v. Bass6/6/2005
t of acts alleged to have been committed in violation of OCGA § 40-6-391, which includes driving under the influence of alcohol. Accordingly, "consent is implied only if a person is arrested for a violation of OCGA § 40-6-391." Here, Bass was not arrested for any such violation before the blood test was conducted. Rather, he was arrested some two-and-a-half months after his blood was drawn at the hospital.
" nder OCGA § 40-5-55 (a) the implied consent test is only upheld where an arrest has actually been effectuated." Since no arrest of Bass had actually been effectuated prior to the drawing and testing of his blood, the test results are not admissible and the trial court correctly granted Bass' motion to suppress evidence of those results.
We note that the state has also cited the cases of Rogers v. State and Smith v. State to support its claim that Bass did not have to be under arrest prior to the drawing of his blood. While those cases did involve the taking of blood from drivers who were, or may have been, unconscious, they did not address the issue of whether of not the drivers had been arrested. Rather, those cases stand for the proposition that if a suspect is dead, unconscious or otherwise incapable of refusing a blood test, then an officer can extract blood without advising the suspect of his implied consent rights. Under those cases, we agree that the deputy in the instant case had no obligation to read the implied consent notice to the unconscious Bass. But the fact that the reading of the notice was unnecessary did not also eliminate the requirement that Bass be arrested prior to the taking of his blood.
2. The state claims that the trial court erred in finding that there was no probable cause to arrest Bass because at the time of his arrest on August 1, 2004, there was probable cause to suspect him of driving under the influence of alcohol based on the odor of alcohol on Bass' breath on the night of the accident and based on the blood test results showing a blood alcohol content above the legal limit. The state's claim is disingenuous because the trial court made no finding about probable cause at the time of arrest on August 1, 2004, some two-and-a-half months after the night of the accident. Rather, the court stated at the suppression hearing that there has to be probable cause for an arrest prior to the effectiveness of the implied consent and that there has to be some evidence other than the mere smell of alcohol to establish probable cause.
It is apparent from the transcript of the suppression hearing that the judge was commenting on the absence of probable cause and the lack of an arrest at the time of the incident on May 14, 2004, and was not making a finding on the issue of probable cause at the time of the actual arrest on August 1, 2004. As the state concedes in its brief, the trial court correctly found that the mere odor of alcohol without more did not establish probable cause to arrest Bass on May 14. Moreover, given our holding above in Division 1 that the results of the blood test are inadmissible, the issue of whether or not there was probable cause for the untimely arrest of Bass more than two months after the incident is irrelevant.
Judgment affirmed. Ruffin, C. J., and Barnes, J., concur.
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