• Cheline Schroeder

Too Drunk to Consent?: Georgia’s trend away from implied consent to field sobriety, blood, and breat


Drivers in Georgia have taken a new approach to combat the validity of field sobriety tests used against them in trials for Driving Under the Influence (DUI). The newly developed defense to taking field sobriety tests when a driver is suspected of drunk driving is that they were actually too drunk to consent to the voluntary tests. In a recent Georgia Supreme Court case in March, the court found that the lower court should reconsider its decision in determining that the defendant actually consented to the field sobriety test because he was not in the right state of mind to consent. Williams v. State, 296 Ga. 817, 771 S.E.2d 373, 377 (2015).

Other cases in Georgia have also demonstrated a trend towards suppressing evidence without clear consent. In a case of breath test, a judge in Dekalb Georgia threw out the evidence because the suspect was too drunk to consent to giving the test . The judge found that the suspect did not consent because he did not give a clear affirmative answer when the officer asked him if he would be willing to take the test. In a third case, also in Georgia, the suspect was so intoxicated that he vomited on a patrol car and gave vague answers when asked if he would consent to the test. The judge in Philip Bowman’s case threw out the breath test, even after the suspect blew a .225, well above the legal limit in most states of .08.

What did law enforcement rely on before this trend?

Before this case was decided, officers and prosecutors would rely solely on express or “implied” consent by an individual who was suspected of drunk driving. This means that the officers would conduct the field sobriety tests even without the person saying clearly and unequivocally that they were aware, and consented to the tests. Instead, the officers would simply rely on the fact that the person had a license; meaning that Georgia law requires you to submit. However, defense attorneys have relied on a constitutional argument, and find that this implied consent is a violation of the suspect’s Fourth and Fifth Amendment rights, because at the time when they are asked to do the test, the option for implied consent has essentially diminished. This means that a reasonable person would not feel compelled to refuse a field sobriety test at this moment when an officer suspects that someone has been drinking and driving, and asked the individual to perform a “voluntary” field sobriety test.

What does this mean for practitioners?

This new trend means that prosecutors are having a very difficult time getting DUI convictions where there is no clear and unequivocal consent on the part of the suspect. Where a judge throws out the physical evidence against a defendant such as a blood test, breath test, or a field sobriety test, the prosecutor will have a very difficult time convincing a jury that the defendant was drunk. This can be incredibly frustrating when the prosecutors know that the defendant was very drunk and clearly should not have been driving. In the future, if prosecutors and law enforcement seek convictions of DUIs, they must ensure that every suspect consents clearly to these tests. For defense attorneys, while this is a small victory with combatting problematic field sobriety tests and unreliable breath and blood tests, the argument is more about the individual rights and liberties of suspects who are being tricked into and pressured into taking tests when they have the constitutional right to refuse. Defense attorneys still have much work to do in finding better alternatives to these sorts of tests to ensure accuracy in DUI cases and to avoid wrongful conviction.


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