Handschuh v. State , 270 Ga. App. 676 ( 2004 )

Blackburn, Presiding Judge,

concurring fully and specially.

I concur fully in the opinion of the majority. I write, however, (a) to identify further support for the conclusion that an arrest is required before consent is implied and thus before the refusal to consent may be used against the defendant and (b) to respond to some of the points raised in the dissent.

1. As stated so clearly in State v. Johnston,⁴ “implied consent is contingent upon an arrest. . . Unfortunately, as noted by the majority, the Court of Appeals has routinely misinterpreted the operative statute on this point, which requires the various overrulings and disapprovals as set forth in the majority opinion.⁵ Absent an arrest, there is nothing in the statute which implies consent for a chemical test. Thus, it is premature for an officer to read an implied consent notice to a driver before that driver is arrested. If the officer does so, he is misinforming the driver that under Georgia law, the driver has already impliedly consented to submit to state-administered chemical tests and that a refusal to allow such may be offered into evidence against the driver at trial,⁶ when in fact OCGA§ 40-5-55 (a) does not imply such consent until an arrest is effected.

In addition to the plain language of OCGA § 40-5-55 (a), the statutes relating to when such refusal may be used against a driver require such an arrest before consent is implied and thus before the refusal to consent to such tests maybe used against the driver. OCGA § 40-6-392 (d), which is the operative statute addressing when the refusal to consent is admissible in evidence against the defendant, specifies that the refusal is “the refusal of the defendant to permit a chemical analysis to be made of his blood, breath, urine, or other bodily substance at the time of his arrest. . . .” (Emphasis supplied.) OCGA § 40-5-67.1 (d), which addresses an officer’s reporting responsibilities of a refusal to consent, states:

If a person under arrest... refuses, upon the request of a law enforcement officer, to submit to a chemical test designated by the law enforcement officer as provided in subsection (a) of this Code section, no test shall be given; but the law enforcement officer shall report the refusal to the department. Upon the receipt of a sworn report of the law enforcement officer that the officer had reasonable grounds to believe the arrested person had been driving or was in actual physical control of a moving motor vehicle upon the highways or elsewhere throughout this state in violation of Code Section 40-6-391... and that the person had refused to submit to the test upon the request of the law enforcement officer, the department shall suspend the person’s driver’s license, permit, or nonresident operating privilege for a period of one year. . . .

(Emphasis supplied.)

Thus, in addition to the plain language of OCGA § 40-5-55 (a), these other Code sections mandate the necessity of an arrest before any consent is implied and thus before any legal consequences of refusing such consent are triggered.

2. The dissent argues that the “combination of serious injury and probable cause is sufficient to pass muster under Cooper [v. State⁷].” The dissent focuses on the language in Cooper that OCGA § 40-5-55 is unconstitutional “to the extent that [it] 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. . . .” (Emphasis supplied.) Cooper, supra at 291 (V). The dissent contends that the “to the extent” language means that in those cases where probable cause is present, then that portion of the statute (which implies consent to tests where there is serious injury) is revived and thus requires drivers involved in such accidents to take such tests or else face the consequences of losing their license and of having their refusal used against them in a trial.

I disagree. The key sentence in OCGA § 40-5-55 (a) sets forth two circumstances under which consent is implied. The second circumstance — involvement in a traffic accident resulting in serious injuries — contains no requirement for a probable cause finding and therefore under Cooper was declared unconstitutional. Once the Supreme Court of Georgia declares a statute unconstitutional, we are not authorized to revive that statute through interpretation. The dissent’s argument that all is well because we happen to have probable cause in this particular case ignores that the statute continues to have a fatal defect (as found in Cooper) that probable cause is not required in the statutory language; thus, this portion of the statute remains constitutionally infirm. In other words, the presence of probable cause in the present case does not correct the constitutional infirmity. Only the legislature — not this Court — may amend the statute so as to correct its constitutional defect.

3. The dissent’s focus on Cooper’s words “to the extent” as possibly saving OCGA§ 40-5-55 (a) is misplaced. The key sentence in OCGA § 40-5-55 (a) reads:

Therefore, any 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 arrested for any offense arising out of acts alleged to have been committed in violation of Code Section 40-6-391 or if such person is involved in any traffic accident resulting in serious injuries or fatalities.

Thus, implied consent arises in either of two circumstances: the driver is arrested for any offense arising out of certain acts or the driver is involved in a traffic accident resulting in serious injuries or fatalities. Because an arrest is required in the former circumstance, probable cause is necessarily present. Because only a traffic accident involving certain injuries is required in the latter circumstance, no probable cause is required, which is the constitutional defect found in Cooper. In declaring this latter circumstance identified in the operative sentence as unconstitutional, Cooper necessarily used the words “to the extent” so as to clarify that the former circumstance identified in the same sentence was not being declared unconstitutional. Thus, the statute was being declared unconstitutional only to the extent it (i.e., only that portion that) authorized serious injuries in a vehicle accident to trigger the implied consent to chemical tests, and was not being declared unconstitutional to the extent it (i.e., that portion that) authorized an arrest — which by definition would require probable cause — to trigger that consent.

4. The dissent maintains that OCGA § 40-5-55 (a) “does not speak to the timing of the reading of an IC notice [but instead] addresses the post-arrest authority to administer a chemical test — ” (Emphasis omitted.) The dissent argues that “[w]hat the majority is doing here is mixing up the obligation to read IC warnings as close to the time of arrest as circumstances permit with the statutory authority to perform a chemical test after arrest.”

I disagree. The timing of the reading of an implied consent notice is of utmost importance if the accused’s response to that reading is going to be used against him at trial. If at the time of the reading no arrest has been effectuated, then the reading is a misrepresentation that the accused has already impliedly consented to a chemical test when in fact the absence of the arrest simply makes that untrue. Not until the arrest occurs does the statute imply consent. Thus, the driver’s response to a premature and misleading request for chemical tests should not and cannot be used against the driver, for the very statutes authorizing the reporting and use of such a refusal as evidence specifically require that the driver be “under arrest” at the time of the refusal. OCGA § 40-5-67.1 (d). See OCGA § 40-6-392 (d) (only the refusal “at the time of his arrest shall be admissible”). The legislature could not have been clearer in these statutes that the timing of the reading of the implied consent notice is determinative in whether the driver’s response to that reading is admissible. Because the admissibility of that refusal is the key issue in this case, we cannot gloss over this statutory language and claim that it pertains only to the post-arrest authority to administer a chemical test.

5. Finally, the dissent’s attempts to distinguish Buchanan v. State⁸ are ineffective. Buchanan holds without equivocation that “the statute, as it now stands, provides that consent is implied only if a person is arrested for a violation of OCGA § 40-6-391.” (Emphasis in original.) Id. at 150 (1). The officer’s probable cause belief in Buchanan as to the driver’s being under the influence of alcohol or drugs was insufficient to validate the reading of the implied consent notice prior to the driver’s arrest.

For these reasons, I concur fully and specially in the majority opinion.

I am authorized to state that Judge Miller joins in this special concurrence.

4 State v. Johnston, 249 Ga. 413, 414 (2), n. 1 (291 SE2d 543) (1982). Curiously, the dissent’s quote of this sentence from Johnston fails to include this key language.

5 Indeed, Oliver v. State, 268 Ga. App. 290 (601 SE2d 774) (2004), which is distinguishable in that the implied consent notice was read after the arrest (in addition to before the arrest), nevertheless contains language that should also be disapproved. See id. at 294 (1).

6 OCGA § 40-5-67.1 (b).

7 Cooper v. State, 277 Ga. 282 (587 SE2d 605) (2003).

8 Buchanan v. State, 264 Ga. App. 148 (589 SE2d 876) (2003).