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Klink v. State5/30/2000
Date of Judgment Appealed: 07-29-99
Notice of Appeal Date: 08-24-99
At issue in both of these appeals is the constitutionality of OCGA § 40-5-67.1, that provides for notice of implied consent to chemical testing for those suspected of driving under the influence of alcohol. S00A0503
Appellant Klink was involved in an automobile accident when he allowed his vehicle to cross the center line and strike an oncoming vehicle head on. The officer who investigated the accident observed that Klink smelled of alcohol. Klink stated that he had consumed five vodka tonics. After subjecting Klink to a series of field sobriety tests, the officer concluded that Klink was under the influence of alcohol and placed him under arrest for DUI. The officer read Klink an appropriate implied consent notice regarding chemical testing as mandated by OCGA § 40-5-67.1. Klink consented to a state administered blood test which determined that his blood alcohol level exceeded that allowed by law.
At trial, Klink objected to the admission of the blood test results, alleging that the implied consent notice read to him pursuant to OCGA § 40-5-67.1 is unconstitutional. The trial court overruled Klink's objection and allowed the test results into evidence. Klink was convicted of DUI after a bench trial and given a twelve month sentence with one day to be served in jail and the remainder on probation. S00A0874
Appellant Watt was found by police in his automobile, which was stopped in the in the center turn lane with its brake lights on and engine running. Watt was in the driver's seat with his head tilted back. The officers were able to wake Watt after much difficulty. Watt had great difficulty complying with simple requests made by the officers and was unable to perform all of the tasks required for the field sobriety tests the officers administered. He was arrested and read an appropriate implied consent notice regarding chemical testing, pursuant to OCGA § 40-5-67.1. Watt agreed to take a breath test and his blood alcohol was found to be 0.092% approximately three hours after he was found by police. The state charged Watt with driving under the influence of alcohol. Watt moved to exclude the results of his breath test, alleging that the implied consent notice read to him pursuant to OCGA § 40-5-67.1 is unconstitutional and that the state was required to show that Watt had been observed for 20 minutes before the test was conducted in order to admit the results of the breath test. The trial court found Watt guilty of DUI after a bench trial.
1. Both Klink and Watt contend it was error for the trial courts to uphold the constitutionality of OCGA § 40-5-67.1. They argue the implied consent notice given to them pursuant to the statute violates due process because it is incomplete, misleading and coercive in that suspects are advised that a refusal to submit to a test will result in a one-year suspension, but are told that if they agree to take a test, there is only a possibility that their driver's licenses might be suspended if their blood alcohol concentration proves to be 0.10 grams or more. Further, Klink and Watt argue that the notice is incomplete, misleading and coercive because suspects are warned that a refusal to submit to testing may be used against them at trial, but are not told that test results may be used against them at trial.
It is clear that the Georgia Constitution does not protect citizens from compelled blood testing or from the use of the results of compelled blood testing at trial. Allen v. State, 254 Ga.433 (1) (330 SE2d 588) (1985). Nor is compelling a defendant to submit to breath testing unconstitutional under Georgia law. Green v. Sta
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