On March 27th, 2015, the Georgia Supreme Court issued an opinion on Williams v. State. The Court found that an individual submitting to State testing for alcohol or drugs based on the officer reading the Georgia Implied Consent warning is no longer sufficient under Georgia law. Now the trial courts must look to whether the defendant "freely and voluntarily consented" to taking the test.
This sea change may sound as if it came out of left field, but is a natural progression after the United States Supreme Court decision of Missouri v. McNeely. In McNeely, the Court rejected the natural dissipation of alcohol from a subject's blood as an "exigency exception" to the 4th Amendment warrant requirement for a blood draw. With McNeely in place, the Georgia Supreme Court focused on "voluntary consent" since it would obviate the need for a search warrant for intrusive testing into a citizen's blood or breath.
Since Williams, many judges have simply found voluntary consent to be present, despite the lack of evidence on the record. However, Superior Court judges in Cherokee County and Fulton County have granted Williams motions in May and June, respectively. This sets the stage to see if the State will appeal these rulings, bringing them back to the Georgia Court of Appeals or Supreme Court for further clarification on this issue.
Many judges and prosecutors are adopting a "wait and see" approach, avoiding a potential mistake that could turn into bad case law. It is likely that the Williams case will be a hot-button issue until Georgia lawmakers can address this issue in the next legislative session. It is important to hire a DUI specialist who knows how to draft motions, frame issues, and elicit officer testimony in order to have the best possible defense against a driving under the influence accusation.