For Attorneys: Hynes v. State, No. A17A0633, 2017 WL 2361134 (May 2017)- DUI, implied consent case

Hynes v. State   No. A17A0633, 2017 WL 2361134 (Ga. Ct. App. May 31, 2017) - A recent DUI case discussing implied consent and independent testing rights.

Procedural history-The trial court charged James Hynes with failure to maintain lane, driving under the influence of alcohol less safe, and DUI per se. He filed a motion to suppress the results of a blood test administered pursuant to a search warrant but the trail judge denied. He appeals.

Facts- An officer observed Hynes weaving across the center line while driving and conducted a traffic stop. The officer smelt a “heavy odor of alcohol” on his breath. At first Hynes refused a Field Sobriety Test but later let the officer perform a HGN test. During the test, he exhibited all six indicators. He refused the state-administered blood test, but stated that he would "do an independent test." The deputy obtained and executed a search warrant for a blood test. The deputy testified that he did not permit Hynes to obtain an independent test because "he refused implied consent." Hynes argues that he was entitled to an independent test because under the plain language of OCGA § 40-6-392 (a) (3), a chemical test performed pursuant to a search warrant comes within the definition of "any administered at the direction of a law enforcement officer."

Issue- Whether a DUI suspect has the right to an independent test when that suspect refuses testing under the implied consent law but is then tested pursuant to a search warrant.

Holding-In a case in which defendant was charged with failure to maintain lane, driving under the influence of alcohol less safe, and DUI per se, the trial court did not err in denying his motion to suppress the results of a blood test administered pursuant to a search warrant because O.C.G.A. § 40-6-392 did not grant defendant the right to an independent test when the officer obtained a search warrant for a blood test; under the implied consent law, defendant forfeited his right to independent testing by refusing the arresting officer's request to submit to a state-administered breath test after being advised under O.C.G.A. § 40-5-67.1; and defendant was not entitled to take advantage of the independent test incentive as he refused to submit to the chemical testing requested by the arresting officer pursuant to O.C.G.A. § 40-5-55.

Reason-The court conducted a de novo review of the trial courts negative answer in the motion to suppress by using Jones v. State, 291 Ga. 35, 36-37 (1) (727 SE2d 456) (2012). In codifying Georgia's implied consent law, the courts General Assembly declared as a matter of law that persons in control of any moving vehicle while 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. Construing the plain language of OCGA § 40-6-392 (a) (3), it is apparent that it applies only to tests administered at the direction of a law enforcement officer, not tests administered pursuant to a search warrant, which by definition are issued at the direction of a judicial officer. So, while subsection 40-6-392 (a) (1) (A) applies to chemical tests performed pursuant to search warrants, subsection (a) (3) does not. This helps conclude that an independent test is an incentive for accepting testing under implied consent. Since Hynes refused to submit to the chemical testing requested by the arresting officer pursuant to OCGA § 40-5-55, he was not entitled to an independent test. The trial court properly denied his motion to suppress the results of the blood test performed pursuant to a search warrant.

Judgement- Affirmed

Intern's Take- This case really boils down to the premise that if you refuse implied consent, then you are not able to receive an independent test because an independent test is used as "incentive" to those who submit to testing under implied consent.

About the Author-

Matthew Gilbo is a resident of Cumming, Georgia and has received his bachelor’s degree in Criminal Justice at Georgia College & State University. Throughout his undergrad, he was continuously involved in organizing and maintaining nonprofit organizations. He is currently attending Mercer Law School and is scheduled to be a part of the graduating class of 2019. He plans on becoming a Criminal Defense and Personal Injury attorney in the state of Georgia.

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