Williams v. State: 4th Amendment Analysis and Georgia Implied Consent

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Institute of Continuing Judicial Education of Georgia

Erin H. Gerstenzang September 10, 2015

[email protected]

WILLIAMS v.

STATE

http://www.ehglawfirm.com

mailto:[email protected]

Gerstenzang • Sessions

I M P L I E D C O N S E N T

A C T U A L C O N S E N T

For the first time in Georgia, the trial court now must determine “the voluntariness of the consent” at a suppression hearing challenging the chemical test.

Williams v. State, 296 Ga. 817, 771 S.E.2d 373 (2015)

http://S


2015

People v. Harris, 234 Cal.

App. 4th 671

2014

State v. Padley, 354 Wis. 2d 545

2014

State v. Moore, 354 Or. 493, 318

P.3d 1133,

2013

State v. Brooks, 838 N.W.2d 563

1966

Schmerber v. California, 384 U.S. 757 (1966)

2013

Missouri v. McNeely, 133 S. Ct. 1552 (2013)

2015

Williams v. State, 296 Ga. 817, 771 S.E.2d

373

2015

Davis v. State, 332 Ga. App.

488, 773 S.E.2d 442, 442

2015

State v. Med., 2015 S.D. 45


Subjecting a person to a breathalyzer test, which generally requires production of alveolar or "deep lung" breath for chemical analysis, implicates similar concerns about bodily integrity and, like the blood-alcohol test we considered in Schmerber, should also be deemed a search.”

A BREATH TEST IS A SEARCH

Skinner v. Ry. Labor Executives' Association 489 U.S. 602, 616-617 (1989)

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THE FACTS OF THE CASE

S A I D Y E S

G E O R G I A L AW

R E Q U I R E S YO U T O

F O R M A L A R R E S T

N O M I R A N D A

I N T O X I C ATI O N

T H R E AT E NE D LO S S O F

L I C E N S E

D O E S N ’ T S P E A K

E N G L I S H

O F F I C E R I S P O L I T E


Tending toward non-voluntaryTending toward voluntary

THE HOLDING IN WILLIAMS

[Appellate courts] are required to scrutinize closely any alleged consent given by a suspect to the police, bearing in mind that mere acquiescence to the authority asserted by a police officer cannot substitute for free consent.”

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“ G E O R G I A L AW R E Q U I R E S YO U

T O S U B M I T… ”


DID THE DRIVER MERELY ACQUIESCE TO CLAIM OF LAWFUL AUTHORITY?

Even if express consent were shown, that consent was not voluntary. ‘A consent which is the product of coercion or deceit on the part of the police is invalid.’”

State v. Fulghum, 261 Ga. App. 594, 596, 583 S.E.2d 278, 281 (2003)

“ G E O R G I A L AW


S U B M I T… ”

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[W]hen an officer represents to an accused that he has authority to search, when actually he does not, a resultant consent by the accused to the search is invalid.

STATE V. FULGHUM, 261 GA. APP. 594, 596, 583 S.E.2D 278, 281 (2003)

Acquiescence to the authority asserted by a police officer

The officer did not state either that he asked for consent to search the residence or that she expressly consented to a search of the residence; rather, at most there was implied consent.

The lead officer told Mrs. Fulghum that he had an order to pick up the children and that he and the other officers needed to come in and make sure that the children were not there. Mrs. Fulghum allowed the police to enter the home.

Acquiescence to the authority asserted by a police officer

STATE V. FULGHUM, 261 GA. APP. 594, 596, 583 S.E.2D 278, 281 (2003)

“ G E O R G I A L AW R E Q U I R E S Y O U T O S U B M I T ”

[W]hen an officer represents to an accused that he has authority to search, when actually he does not, a resultant consent by the accused to the search is invalid.

The officer did not state either that he asked for consent to search the residence or that she expressly consented to a search of the residence; rather, at most there was implied consent.

The lead officer told Mrs. Fulghum that he had an order to pick up the children and that he and the other officers needed to come in and make sure that the children were not there. Mrs. Fulghum allowed the police to enter the home.




S U B M I T… ”


I request that you submit to the withdrawal of your ___________ [blood, breath, bodily substance]…

In essence, Officer Neisen informed Medicine that he had already granted authority to the State to draw his blood, then reinforced that assertion by asking Medicine to surrender to the authority he purportedly had previously granted.”



S U B M I T… ”


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State v. Medicine, 2015 S.D. 45 (June 10, 2015)



Whether fabricated or an honest recitation of purported statutory authority, “[w]hen a law enforcement officer claims authority to search [an individual], he announces in effect that the [individual] has no right to resist the search. The situation is instinct with coercion—albeit colorably lawful coercion. Where there is coercion there cannot be consent.



S U B M I T… ” “

State v. Medicine, 2015 S.D. 45 (June 10, 2015)



S A I D Y E S

G E O R G I A L AW

R E Q U I R E S YO U T O S U B M I T



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WAS THE DRIVER PHYSICALLY DETAINED AT THE TIME THEY GAVE THEIR CONSENT?

This burden on the Government is particularly heavy in cases where the individual is under arrest. Non-resistance to the orders or suggestions of the police is not infrequent in such a situation; true consent, free of fear or pressure, is not so readily to be found.”

Judd v. U.S . , 190 F.2d 649, 651 (D.C.Cir. 1951)


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Whether the accused was advised of his const i tut ional r ights is a factor to be taken into account in determining voluntar iness.”

Arr ington v. State, 286 Ga. 335, 344, 687 S.E .2d 438, 449 (2009)

N O M I R A N D A

CONSTITUTIONAL ADVISEMENT

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F O R M A L A R R E S TN O M I R A N D A



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I N T O X I C AT I O N


In State v. Durrance, the Court of Appeals upheld the suppression of the fruits of a search where the State attempted to prove voluntary consent. One of the officers testified that Durrance was intoxicated, and “this intoxication contributed to the invalidity of the search.”

State v. Durrance, 295 Ga.App. 216 (2008)


WAS THE DRIVER ALLEGED TO BE INTOXICATED AT THE TIME CONSENT WAS GIVEN?

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T H R E AT E N E D

LO S S O F L I C E N S E


Where the choice is between the rock and the whirlpool, duress is inherent in deciding to waive one or the other. It always is for the interest of a party under duress to choose the lesser of two evils. But the fact that a choice was made according to interest does not exclude duress. It is the characteristic of duress properly so called.”

Garr i ty v. New Jersey, 385 U.S . 493 (1967)

T H R E AT E N E D LO S S O F L I C E N S E

DOES THE DIFFICULT CHOICE RENDER ICW COERCIVE?

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Anything you say might be used against you in any state criminal proceeding.

You have the privilege to refuse to answer if the disclosure would tend to incriminate you

If you refuse to answer you would be subject to removal from office.



The choice given pet i t ioners was either to forfeit their jobs or to incr iminate themselves. The opt ion to lose their means of l ivel ihood or to pay the penalty of self- incr iminat ion is the ant i thesis of free choice to speak out or to remain s i lent .


T H R E AT E N E D LO S S O F L I C E N S E

DOES THE DIFFICULT CHOICE RENDER ICW COERCIVE?

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The fact that the driver is forced to make a difficult choice does not render the consent involuntary. ‘The criminal process, like the rest of the legal system, is replete with situations requiring ‘the making of difficult judgments' as to which course to follow.’”

State v. Padley, 849 N.W.2d 867, 872-873 (Wis .App. 2014)

CONSEQUENCES IF YOU REFUSE

T H R E AT E N E D LO S S O F L I C E N S E “



[T]he choice to submit or refuse to take a blood-alcohol test will not be an easy or pleasant one for a suspect to make, the difficultly of the decision does not mean the motorist's ultimate choice is coerced.



S U B M I T… ” “

People v. Harris, 234 Cal. App. 4th 671, 678, 184 Cal. Rptr. 3d 198, 204 (2015), review filed (Apr. 2, 2015)



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E N G L I S H



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E N G L I S H

O F F I C E R I S P O L I T E

D I D N ' T A S K Q U E S T I O N S

N O V I O L E N C E



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D I D N O T T R Y T O

W I T H D R AW C O N S E N T

C O M P L I E D W I T H P B T

State v. Padley (2014)

WISCONSIN

State v. Brooks (2013)

MINNESOTA

People v. Harris (2015)

CALIFORNIA

State v. Moore (2014)

OREGON

WHAT ABOUT OTHER OUT-OF-STATE DECISIONS?

Williams v. State (2015)

GEORGIA

State v.Medicine (2015)

SOUTH DAKOTA


"Georgia law requires you to submit to state administered chemical tests of your blood, breath, urine, or other bodily substances …

If you submit to testing and the results indicate an alcohol concentration of 0.08 grams or more …

… Will you submit to the state administered chemical tests of your [designate which tests] under the implied consent law?"

Minnesota law requires [driver] to take a test” to determine if they are “under the influence of alcohol,” that “refusal to take a test is a crime,” and that they have a right to talk to an attorney, “but that this right is limited to the extent that it cannot unreasonably delay administration of the test.

It is a crime for a person to refuse to take a test requested under the implied consent law.

State v. Brooks, 838 N.W.2d 563 (2013)

Georgia Implied Consent Warning

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COMPARE TO MINNESOTA STATUTE


COMPARE TO OREGON STATUTEAny person who operates a motor vehicle upon premises open to the public or the highways of this state shall be deemed to have given consent, subject to the implied consent law, to a chemical test of the person's breath … for the purpose of determining the alcoholic content of the person's blood if the person is arrested for driving a motor vehicle while under the influence of intoxicants in violation of ORS 813.010 or of a municipal ordinance … Before the test is administered the person requested to take the test shall be informed of consequences and rights as described under ORS 813.130.”

State v. Moore, 354 Or. 493, 318 P.3d 1133, (2013)

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COMPARE TO WISCONSIN STATUTEThis law enforcement agency now wants to test one or more samples of your breath, blood or urine to determine the concentration of alcohol or drugs in your system. If any test shows more alcohol in your system than the law permits while driving, your operating privilege will be suspended. If you refuse to take any test that this agency requests, your operating privilege will be revoked and you will be subject to other penalties.

The test results or the fact that you refused testing can be used against you in court.

State v. Padley 849 N.W.2d 867, 872-873 (Wis.App. 2014)





VS


[The officer] advised defendant that he did not have the right to talk to a lawyer when deciding whether to submit to the chemical test, that refusal to submit to the test would result in the suspension of his driver's license, and that refusal could be used against him in court.

People v. Harris, 234 Cal. App. 4th 671, 678, 184 Cal. Rptr. 3d 198, 204 (2015), review filed (Apr. 2, 2015)

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COMPARE TO CALIFORNIA STATUTE


COMPARE TO SOUTH DAKOTA STATUTEI have arrested you for a violation of [DUI]

SDCL 32–23–10 provides that any person who operates a vehicle in this state has consented to the withdrawal of blood or other bodily substance and chemical analysis.

I request that you submit to the withdrawal of your _________ (blood, breath, bodily substance).

You have the right to an additional chemical analysis by a technician of your own choosing, at your own expense.

Do you consent to the withdrawal of your _________ (blood, breath, bodily substance)?

State v. Med., 2015 S.D. 45 (June 10, 2015)

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Law

Williams v. State: 4th Amendment Analysis and Georgia Implied Consent