State v. Simmons

¶1concurring specially.

¶2Although I agree that the trial court erred in suppressing the results of Simmons’ blood test, I write separately to clarify the basis for my agreement. It is undisputed that, when arrested for driving under the influence of alcohol on August 4, 2001, Simmons consented to a State-administered blood test. A police officer transported Simmons to the hospital, where his blood was drawn, and the blood was submitted to the crime lab for analysis. Several days later, and before the crime lab actually analyzed the blood, defense counsel wrote the crime lab, purportedly withdrawing Simmons’ consent to the blood test. The lab subsequently analyzed the blood, which, according to the lab report, contained 0.174 grams of alcohol.

¶3Following a hearing, the trial court suppressed the results of the blood test. In so doing, it determined that Simmons had validly withdrawn his consent to the test before the State analyzed his blood. Under Georgia’s implied consent law,

any person who operates a motor vehicle upon the highways or elsewhere throughout this state shall be deemed to have given consent... 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 [OCGA § 40-6-391, which prohibits driving under the influence of alcohol, drugs, or other intoxicating substances].3

¶4A person suspected of driving under the influence can, however, withdraw this implied consent.4 Although our Supreme Court “has made plain that the Georgia Constitution does not protect citizens *305[arrested for DUI] from compelled blood or breath testing,”5 the implied consent provision “grants a suspect an opportunity, not afforded him by our constitution, to refuse to take a blood-alcohol test.”6 The question here is when that refusal or withdrawal must be made.

¶5Simmons argues, and the trial court agreed, that in cases involving State-administered blood tests, the refusal can occur at any time before the crime lab analyzes the blood sample. Like the majority, I disagree.

¶6As we recently noted, “ ‘under ordinary circumstances, [an] implied consent warning must be given [to DUI suspects] at the time of the arrest, or at a time as close in proximity to the instant of arrest as the circumstances of the individual case might warrant.’ ”7 This statutorily mandated warning informs the suspect of his or her right to refuse State-administered testing, as well as the ramifications of such refusal.8 At the conclusion of the warning, the officer must ask whether the suspect will submit to the State test.9 If the person refuses, the officer must report the refusal to the Department of Motor Vehicle Safety.10 Moreover, a chemical test shall not be administered if the person “refuses, upon the request of a law enforcement officer, to submit to [the] test.”11

¶7Given this statutory scheme, it is apparent that the legislature intended that a refusal to submit to chemical testing — or a withdrawal of implied consent — be communicated in close proximity to the time of arrest and the officer’s request for testing. Certainly, a DUI suspect must make such refusal known before he or she actually submits to the test and the testing process begins.

¶8According to Simmons, “testing” had not begun here because the crime lab had not yet analyzed his blood sample. In my opinion, however, a blood test begins with the withdrawal or collection of blood. And the language of OCGA§ 40-6-392, which sets forth guidelines governing State-administered chemical testing, supports this interpretation. Subsection (a) of that Code section states that, “[w]here such a chemical test is made, the following provisions shall apply.” It then lists several provisions relating, among other things, to the actual chemical analysis performed pursuant to methods approved *306by the Division of Forensic Sciences,12 as well as the type of persons who may withdraw blood “for the purpose of determining the alcoholic content therein.”13 Provisions relating to both the collection and analysis of blood thus fall within the discussion of “chemical test” under OCGA § 40-6-392 (a). Clearly, therefore, the legislature viewed the blood withdrawal as part of the testing process.

¶9Simmons submitted to the State-administered blood test when he allowed his blood to be drawn on August 4, 2001, following his arrest. He did not refuse to take the test or withdraw his implied consent at that point. Instead, he waited several days before attempting to withdraw consent. Given the language of Georgia’s implied consent provision, I find this attempted withdrawal untimely and, thus, ineffectual. Accordingly, the trial court erred in granting Simmons’ motion to suppress.