On September 11, 2019, the Court of Appeals of Georgia decided O’Shields v. State[i], in which the court examined whether the consent of driver who was under the influence of drugs, not under arrest, and not provided the state “implied consent notice” was free and voluntary. The relevant facts of O’Shields, taken directly from the case, are as follows:
[I]n the early morning hours of May 25, 2015, O’Shields rear-ended a fire truck that was stopped on the expressway in Clayton County due to a previous, unrelated accident. The passenger in O’Shields’s car was killed and O’Shields was injured in the accident. O’Shields was taken to the hospital, where Georgia State Patrol troopers interviewed him while he was awaiting surgery.
At the time of the interview, O’Shields was able to answer questions, was aware of the accident, and asked the troopers about the passenger. He told the troopers that his passenger, who was a heavy man, had collapsed on him, and he was taking the passenger to the hospital when the accident occurred. Although he seemed cognizant, the troopers noticed he spoke with slurred speech and had likely received pain medication prior to the interview. The two state troopers interviewing O’Shields believed he might have been under the influence at the time of the accident, and one of them asked him for consent for a blood test. O’Shields gave consent, and the blood test results were positive for methamphetamine, amphetamine, and alprazolam (Xanax).
Before he was taken into surgery, O’Shields gave his belongings to hospital staff, including a tin box that he told staff was “special” and which he instructed the staff not to open. Police later determined the contents of the box to be 5.05 grams of methamphetamine.
Investigators obtained crash data from the airbag modules in O’Shields’s car. The data showed that O’Shields had been traveling 76 miles per hour seconds before the accident, and 74 miles per hour at impact. The posted speed limit was 65 miles per hour. The data also showed that he had applied his brakes in the seconds leading to the crash. A trooper testified that methamphetamine could slow a driver’s response time.
O’Shields requested that the trial court instruct the jury on the lesser included offense of second degree vehicular homicide because the police initially alleged that O’Shields had been following too closely. The trial court declined to do so based on the manner in which O’Shields was indicted. The jury convicted O’Shields of two counts each of vehicular homicide in the first degree and DUI less safe based on the drugs, and one count of possession of methamphetamine.[ii]
O’Shields subsequently filed a motion for a new trial and argued, among other things, that the trial court erred in failing to suppress the results of his blood test. He argued that the state failed to prove that his consent was free and voluntary. The trial court denied the motion, and O’Shields appealed to the Court of Appeals of Georgia.
The issue on appeal that we will examine is whether O’Shields’ consent was free and voluntary.
The court of appeals first noted that the Fourth Amendment applies to the “compelled withdrawal of blood and the extraction of blood is a search within the meaning of the Georgia Constitution.” The court also noted that such a withdrawal of blood is reasonable if conducted pursuant to a search warrant, and per se unreasonable without a search warrant, unless done in accordance with a few “specifically established and well-delineated exceptions.”[iii]
The court further stated
[I]t is well settled in the context of a DUI blood draw that a valid consent to a search eliminates the need for either probable cause or a search warrant.” (Citation omitted.) Id. at 821. And, where the State points to consent as the basis for the search, “the State has the burden of proving that the accused acted freely and voluntarily under the totality of the circumstances.” (Citations omitted.) Id.
Specifically, under Georgia law, voluntariness must reflect an exercise of free will, not merely a submission to or acquiescence in the express or implied assertion of authority. Consequently, the voluntariness of consent to search is measured by evaluating the totality of the circumstances, which includes factors such as prolonged questioning; the use of physical punishment; the accused’s age, level of education, intelligence, length of detention, and advisement of constitutional rights; and the psychological impact of these factors on the accused.[iv]
In addition to the considerations above, the court of appeals also may consider other factors relevant to consent such as (1) lack of fear, intimidation, or threats to obtain consent, (2) the suspect’s affirmative response to the request for consent, and (3) the lack of subsequent withdrawal of consent.
The court then examined the evidence from the suppression hearing upon which the trial court relied. This evidence was testimony from the trooper who spoke with O’Shields at the hospital. The trooper testified (1) that O’Shields appeared to be under the influence and “kind of out of it,” (2) O’Shields gave coherent and accurate answers to the troopers questions, (3) the trooper asked for and received consent for a blood test, (4) O’Shields understood the request, (5) the trooper did not read the Georgia Implied Consent Notice because O’Shields was not under arrest, and (6) the trooper did not make any threats or promises to induce consent.
After examining the evidence relied upon by the trial court, the court of appeals stated
The fact that O’Shields may have been under the influence of drugs at the time would not automatically negate his consent. MacMaster, 344 Ga. App. at 227 (1) (a); see also State v. Depol, 336 Ga. App. 191, 200 (784 SE2d 51) (2016). Nor does the absence of the implied consent notice change the outcome. Even assuming that the troopers should have given O’Shields the implied consent notice, such notice does not equate with voluntary consent. See Williams, 296 Ga. at 821-822; see also MacMaster, 344 Ga. App. at 226-227 (1) (a) (recognizing that an affirmative response to the implied consent notice does not automatically mean actual voluntary consent to a blood test).[v]
The court of appeals then held that because O’Shields was aware of the accident, understood the request for consent, appropriately answered the trooper’s questions, and was not threatened or intimidated into providing consent, they must conclude that his consent was voluntary.
As such, the court of appeals affirmed the decision of the trial court denying the motion to suppress.
[i] A19A0899 (Ga. App. Decided September 11, 2019)
[iii] Id. (quoting Williams v. State, 296 Ga. 817, 819 (771 SE2d 373)(2015))
[iv] Id. (internal citations omitted)(emphasis added)
[v] Id. (emphasis added)