State v. Simmons

Eldridge, Judge.

In this case, the State of Georgia appeals from the grant of defendant David Simmons’s motion to suppress blood alcohol test results in the State Court of Fulton County. The State contends that the trial court erred in granting Simmons’s motion. The trial court found that a defendant under arrest for driving under the influence (“DUI”), as here, may withdraw his or her consent to a State-administered blood test at any time before the blood sample has been analyzed, in this case 11 days thereafter. We disagree and reverse.

In reviewing a motion to suppress, we construe the evidence most favorably to uphold the findings and judgment of the trial court. Where the evidence is uncontroverted and there is no question concerning the credibility of witnesses, we conduct a de novo review of the trial court’s application of law to the undisputed facts. State v. Stearns, 240 Ga. App. 806, 807 (524 SE2d 554) (1999); Joiner v. State, 239 Ga. App. 843, 848 (2) (522 SE2d 25) (1999). “This Court must construe the evidence most favorably to upholding the trial court’s judgment in this regard. [Cits.]” State v. Burke, 230 Ga. App. 392, 393 (496 SE2d 755) (1998).

The question of whether one should be permitted to withdraw his or her consent to State-administered chemical testing after being arrested for DUI appears to be one of first impression. While we are mindful that our implied consent law allows a reasonable opportunity to rescind a refusal of a State-administered chemical test,¹ see generally McCafferty v. State, 248 Ga. App. 13 (545 SE2d 91) (2001); Dept. of Public Safety v. Seay, 206 Ga. App. 71, 73 (1) (424 SE2d 301) (1992), we find no basis in such law to permit the withdrawal of consent to State testing once consent has been given and is an accomplished fact.

In construing a statute, the determining factor is the intent of the legislature and we look first to the words of the statute to determine what that intent was and if those words be plain and unambiguous and the intent may be clearly gathered therefrom, we need look no further in determining what that intent was.

(Citation and punctuation omitted.) Early v. Early, 269 Ga. 415, 416 (499 SE2d 329) (1998). Moreover, “where the language of an Act is plain and unequivocal, judicial construction is not only unnecessary but is forbidden.” (Citation omitted.) City of Jesup v. Bennett, 226 Ga. 606, 609 (2) (176 SE2d 81) (1970). “In all interpretations of statutes, the ordinary signification shall be applied to all words. . . .” OCGA § 1-3-1 (b). There is no reason to depart from these rules in this case.

“The General Assembly has declared as a matter of law that persons having an illegal blood alcohol concentration ‘constitute a direct and immediate threat to the welfare and safety of the general public.’ OCGA § 40-5-55 (a).” (Punctuation omitted; emphasis in original.) Furcal-Peguero v. State, 255 Ga. App. 729, 731 (566 SE2d 320) (2002). Under the implied consent laws, drivers arrested for DUI are deemed to have consented to chemical testing of their bodily fluids, subject only to the requirement that arresting officers notify them of the right to an independent chemical test by a person of their own choosing and that the refusal to submit to State testing is admissible in evidence against them. Id.; State v. Webb, 212 Ga. App. 872, 873 (443 SE2d 630) (1994); see OCGA §§ 40-5-55 (a);² 40-5-67.1. “ ‘OCGA § 40-5-67.1 . . . allows the person to withdraw his implied consent by refusing to submit to testing.’ Hernandez v. State, 238 Ga. App. 796, 798 (2) (520 SE2d 698) (1999).” Furcal-Peguero v. State, supra. Consequently, Georgia’s implied consent law, on its face, presents two choices to those arrested for DUI: (1) submit to State-administered chemical testing with right to independent testing, if desired, or (2) refuse State testing, suffering the attendant evidentiary consequences. Id. at 733, n. 7. While in proper circumstances one may rescind a refusal to submit to State testing, McCafferty v. State, supra; Dept. of Public Safety v. Seay, supra, this is wholly consistent with our implied consent law in that it amounts to no more than submission to State testing as required thereunder. OCGA §§ 40-5-55 (a); 40-5-67.1; see Furcal-Peguero v. State, supra (rescinding refusal to submit to State testing impliedly consents thereto). However, no fair analogy maybe drawn between rescinding refusal of State testing and withdrawing consent to State testing once consent has been given, the latter as contrary to public safety policy mandating that drivers arrested for DUI submit to State-administered chemical testing, subject to the provisions of OCGA § 40-6-392, to determine the presence of alcohol or drugs in their persons. OCGA §§ 40-5-55 (a); 40-5-67.1; 40-6-391; compare Garcia v. State, 207 Ga. App. 653, 656 (1) (d) (428 SE2d 666) (1993) (in the general criminal law voluntary consent legally obtained continues until revoked or withdrawn absent probable cause to arrest). That the state court granted Simmons’s motion to suppress upon finding him entitled to withdraw his duly given consent to State-administered testing on the theory that chemical analysis of his blood sample had not yet begun, is thus contrary to our implied consent law and reversible error.

Judgment reversed.

Adams, J., concurs. Ruffin, P. J., concurs specially.

1 Whether an accused has effectively rescinded a refusal to submit to a State-administered chemical test is determined upon a consideration of five factors, i.e., whether such a refusal is rescinded

(1) within a very short and reasonable time after the prior first refusal; (2) when a test administered upon the subsequent consent would still be accurate; (3) when testing equipment is still readily available; (4) when honoring the request would result in no substantial inconvenience or expense to the police; and (5) when the individual requesting the test has been in the custody of the arresting officer and under observation for the whole time since arrest.

(Citations omitted.) McCafferty v. State, 248 Ga. App. 13, 15 (1) (545 SE2d 91) (2001).

2 Pertinently OCGA § 40-5-55 (a) provides:

[A]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 arrested for [DUI].

We omit the final clause of the foregoing excerpt from OCGA § 40-5-55 (a), specifically, “or if such person is involved in any traffic accident resulting in serious injuries or fatalities[,]” as unconstitutional notwithstanding any determination of probable cause. Ferguson v. State, 277 Ga. 530 (590 SE2d 728) (2003); Cooper v. State, 277 Ga. 282, 291 (587 SE2d 605) (2003).