Before 2006 Georgia law protected a driver’s right to “refuse” to submit to the states chemical tests in a DUI investigation. A driver’s refusal to submit to the state test(s) was protected under O.C.G.A. § 40-5-67.1(d). The law at that time stated that “no test shall be given” when a driver refuses to take the state’s chemical test after the officer reads the implied consent notice. If a driver refused to take the state test the consequences were – the possible admission of the refusal at the criminal trial and a suspension of their Georgia driver’s license or their privilege to drive in the State of Georgia if they were licensed in another state. The 2005 version of the law protected a driver’s right to prevent law enforcement from ordering a forced chemical test.
Then in 2006 the Georgia legislature amended O.C.G.A. § 40-5-67.1(d) by adding subsection (d.1). The new law states “nothing in this code section shall be deemed to preclude the acquisition or admission of evidence of a violation of O.C.G.A. § 40-6-391 if obtained by voluntary consent or a search warrant as authorized by the Constitution or laws of this state or the United States.” Now an officer can get a Search Warrant and perform a forced blood or urine draw. The Georgia legislature by amending the law in this way has effectively destroyed the driver’s right to be secure in their own body!
I think a good question to ask is – so what is a forced blood or urine draw exactly? It usually starts with several officers forcibly holding down a driver on a medical gurney or restraint chair. The best example of a restraint chair is the one used in Silence of the Lambs to restrain the villain Hannibal Lecter. Both of the driver’s shoulders, arms and legs are strapped down to prevent any movement. A driver’s fear of needles, claustrophobia, medical condition(s), gender and good standing in the community isn’t taken into consideration at all. Remember, this is a FORCED procedure. The driver has no choice or say in the matter. That is why several officers are used to forcibly strap down a driver and any protest is simply disregarded. The specific procedures for the use of the restraints on a driver and the taking of a forced blood or urine sample are defined by each individual law enforcement department or agency.
To get an idea of what a forced blood draw looks like and the number of officers that are used to hold down a driver take a look at this link to a Youtube.com video from Gwinnett County, Georgia. These forced blood draws were taken in the metro Atlanta area. But don’t be fooled into thinking this only happens in Georgia’s largest cities. I am personally aware of a driver being strapped down in a restraint chair in extreme South Georgia and having their blood forcibly taken.
How did we get here?
What happened to our right to refuse the states chemical tests?
To be secure in our own body? Back in 2005 the Georgia Supreme Court took up this topic in State of Georgia v Collier. Mr. Collier was involved in a serious car collision and refused to submit to the states chemical tests of his blood and urine. Mr. Collier later consented to the blood and urine tests after the police threatened to get a Search Warrant and use a catheter to get the samples. The police used these threats even though the Georgia law clearly stated that if a driver “refused”, “no test shall be given”. So let me clarify exactly what the police threatened to do to Mr. Collier if he didn’t consent to the urine test – they would hold him down, use restraint straps to bind down his shoulders, arms, legs & feet, remove his clothing and undergarments and force a catheter into and up his penis/urethra in order to collect a urine sample. Fortunately, based on the law at the time (2005) the Supreme Court of Georgia upheld the law and protected the driver’s right to refuse in Collier.
But with the amendment of the law by the Georgia legislature in 2006 the driver’s “right of refusal” is gone! Oh sure, you can still refuse, but if you make the officer angry they can legally physically violate and assault you, suspend your driver’s license for 12 months, then use your refusal against you in court. So if you, your friend, or family member is stopped by an officer that is having a bad day, it is up to the officer whether or not to get a Search Warrant and take a forced sample. The decision to get a search warrant sounds very subjective and depends on the whim of the arresting officer. And did I mention that the Georgia Implied Consent Notice does NOT inform a driver that the officer can still get a Search Warrant and take your bodily fluids even though you refused!
How will the people of Georgia react to this change in the law and the change in tactics of law enforcement? Will the people allow themselves, their wives, husbands, daughters, sons, moms & dads to be subjected to forced blood draws and forced catheritizations? Will juries refuse to convict drivers that are forced to have their bodily fluids taken? Will average people be so incensed by these brutal police tactics that they demand their legislators change the law and protect their rights? – Only time will tell.
George McCranie, IV
DUI/Criminal Defense Attorney and Author
Call McCranie Law Firm at 912-383-7581 (Douglas) or 229-232-4114 (Valdosta) to speak with an experienced Criminal Defense attorney. Visit our website at mccranielawfirm.com or email George directly at firstname.lastname@example.org. You can also follow us on Facebook, LinkedIn, YouTube and Twitter for informational videos, blogs and answers to your questions.