                               SECOND DIVISION
                                ANDREWS, P. J.,
                            MILLER and BRANCH, JJ.

                    NOTICE: Motions for reconsideration must be
                    physically received in our clerk’s office within ten
                    days of the date of decision to be deemed timely filed.
                               http://www.gaappeals.us/rules/


                                                                      June 12, 2015




In the Court of Appeals of Georgia
 A15A0324. DAVIS v. THE STATE.

      BRANCH, Judge.

      Following a bench trial in Clarke County State Court, Cameron Davis was

convicted of DUI less safe, DUI per se, and reckless driving. Davis now appeals,

arguing that the trial court erred in denying his motion to suppress the results of his

state-administered blood alcohol test. Specifically, Davis contends that because his

alleged consent to that test resulted solely from Georgia’s implied consent notice, it

was not freely and voluntarily given and the test therefore violated the Fourth

Amendment and the related provision of the Georgia Constitution.1 For reasons

      1
         Ga. Const. of 1983, Art. I, Sec. I, Par. XIII contains language identical to that
found in the Fourth Amendment to the United States Constitution with respect to the
prohibition against unreasonable searches and seizures. Specifically, Paragraph XIII
guarantees “[t]he right of the people to be secure in their persons, houses, papers, and
effects, against unreasonable searches and seizures.” The Georgia Supreme Court has
explained below, we vacate both the trial court’s order denying Davis’s motion to

suppress and the judgment of conviction and remand the case for further proceedings

consistent with the Georgia Supreme Court’s opinion in Williams v. State, ___ Ga.

___ (Case No. S14A1625, decided March 27, 2015).

      The record shows that at the bench trial, the parties stipulated to the relevant

facts. The stipulated facts show that at approximately 12:30 p.m. on October 7, 2012,

an Athens police officer conducted a legal traffic stop of a car driven by Davis.2 The

officer initiating the stop noticed that Davis had bloodshot eyes and slurred speech

and smelled strongly of alcohol. The officer asked Davis to take an alcohol breath test

but Davis refused, saying that he would prefer a blood alcohol test. The officer then

explained that Davis was not under arrest, asked Davis to participate in field sobriety

tests, and explained to Davis what those tests would entail. Davis responded that he

would “rather not” undergo the field sobriety tests. The officer then arrested Davis




held that with respect to this guarantee, Paragraph XIII is applied in accord with the
Fourth Amendment. See Brown v. State, 293 Ga. 787, 791 (2) (a), n. 6 (750 SE2d
148) (2013).
      2
        The officer conducted the stop after he observed the car traveling
approximately 20 miles per hour over the posted speed limit.

                                          2
and read him the implied consent notice3 and again asked him to submit to a breath

test. Davis reiterated that he would prefer a blood test. The officer read the implied

consent notice to Davis a second time and asked Davis to undergo a blood test; Davis

then agreed to the request.




      3
      The applicable implied consent notice for suspects age 21 or over is set forth
in OCGA § 40-5-67.1 (b) (2) and states:

             “Georgia law requires you to submit to state administered
      chemical tests of your blood, breath, urine, or other bodily substances
      for the purpose of determining if you are under the influence of alcohol
      or drugs. If you refuse this testing, your Georgia driver’s license or
      privilege to drive on the highways of this state will be suspended for a
      minimum period of one year. Your refusal to submit to the required
      testing may be offered into evidence against you at trial. If you submit
      to testing and the results indicate an alcohol concentration of 0.08 grams
      or more, your Georgia driver’s license or privilege to drive on the
      highways of this state may be suspended for a minimum period of one
      year. After first submitting to the required state tests, you are entitled to
      additional chemical tests of your blood, breath, urine, or other bodily
      substances at your own expense and from qualified personnel of your
      own choosing. Will you submit to the state administered chemical tests
      of your (designate which tests) under the implied consent law?”


                                           3
      The traffic stop had occurred in the parking lot of Athens Regional Medical

Center, so the officer took Davis into the hospital where his blood was drawn.

Chemical tests of the blood performed by the GBI showed that Davis had a blood

alcohol level above the legal limit. Davis was subsequently charged with DUI less

safe, DUI per se, and reckless driving. Prior to trial, Davis filed a motion to suppress

the results of the blood test, arguing that because his consent resulted solely from his

being read the implied consent notice, it was not the voluntary consent required by

the Fourth Amendment. Following a hearing on the motion to suppress, the trial

denied the same. The case proceeded to trial. After hearing the stipulated facts, the

trial court found Davis guilty of all charges. Davis then filed this appeal.

      Approximately six months after this appeal was docketed, the Georgia Supreme

Court issued its opinion in Williams. As in this case, the DUI defendant in Williams

moved to suppress the results of his state-administered blood test, asserting that his

alleged consent to that test had resulted solely from the implied consent notice. Thus,

Williams contended that his consent was not given freely and voluntarily and that the

test therefore violated the Fourth Amendment’s prohibition on warrantless searches.

The trial court denied Williams’s motion, and Williams was thereafter convicted of

DUI following a bench trial. Relying on the United States Supreme Court’s opinion

                                           4
in Missouri v. McNeely, 569 U. S. ___ (133 SCt 1552, 185 LEd2d 696) (2013), the

Georgia Supreme Court vacated both the order denying Williams’s motion to

suppress and the judgment of conviction and remanded the case for the trial court to

address “whether Williams gave actual consent to the procuring and testing of his

blood, which would require the determination of the voluntariness of the consent

under the totality of the circumstances.” Williams, ___ Ga. at ___ (emphasis in

original).

      In reaching the conclusion that remand was necessary, our Supreme Court

relied on the well-established law that “[a] suspect’s right under the Fourth

Amendment to be free of unreasonable searches and seizures applies to the compelled

withdrawal of blood, and the extraction of blood is a search within the meaning of the

Georgia Constitution.” Id. at ___ (emphasis in original; citation omitted). The court

then noted that in McNeely, the United States Supreme Court had “rejected a per se

rule that the natural metabolization of alcohol in a person’s bloodstream constitutes

an exigency justifying an exception to the Fourth Amendment’s search warrant

requirement for nonconsensual blood testing in all DUI cases.” Williams, ___ Ga. at

___. See also McNeely, 569 U. S. at ___ (II) (B) (133 SCt at 1563) (“while the natural

dissipation of alcohol in the blood may support a finding of exigency in a specific

                                          5
case, . . . it does not do so categorically. Whether a warrantless blood test of a drunk-

driving suspect is reasonable must be determined case by case based on the totality

of the circumstances.”) Consequently, where a DUI suspect challenges the validity

of his consent to chemical blood tests, the State must prove that the suspect gave

actual consent – i.e., that the totality of the circumstances show that the suspect acted

freely and voluntarily in giving that consent. Williams, ___ Ga. at ___ (“‘[w]hen

relying on the consent exception to the warrant requirement, the State has the burden

of proving that the accused acted freely and voluntarily under the totality of the

circumstances’”), quoting Cooper v. State, 277 Ga. 282, 291 (VI) (587 SE2d 605)

(2003).

      In light of Williams, we vacate both the order denying Davis’s motion to

suppress and the judgment of conviction. We remand the case for the trial court to

consider whether the totality of the circumstances in this case show that Davis’s

consent to the blood alcohol test was given freely and voluntarily. See Williams, ___

Ga. at ___.

      Judgment vacated and case remanded. Andrews, P. J., and Miller, J., concur.




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