Law enforcement adjusts to loss of implied consent

By Ed Brock

Two people are driving down a lonely road on a motorcycle when they have an accident.

One is killed and the other badly injured, and the police have no way of knowing which one was driving. Under Georgia's recently overturned implied consent law that could have been a bad situation for the survivor if they were drunk but not driving the motorcycle.

"(The overturning of implied consent) prevents police from coming and taking my blood and saying I was the driver and charging me with DUI," said Stockbridge defense attorney Ricky Morris.

On Monday, the Georgia Supreme Court overturned a law that required motorists involved in serious accidents to submit to drug testing or face the loss of driving privileges for a year.

Morris also said that the end of implied consent would actually strengthen the manner in which police investigate DUI cases.

"I think it's the proper ruling," Morris said.

Police will have to take a different approach to investigating accidents that may involve drivers impaired by drugs or alcohol, said Clayton County police Capt. Tom Israel, head of the county's traffic enforcement unit.

"What it's going to mean is when we're out on the scene we're going to have to look for signs of impairment," Israel said. "The cases involving drugs are what will be most affected."

Signs of impairment include the smell of alcohol on a person, slurred speech and, in drug cases, paraphernalia or red eyes.

"The problem is if you have somebody whose unconscious, how do you prove it then?" Israel said.

Police can still request a blood alcohol test if they have probable cause.

The state's implied consent law "authorizes a search and seizure without probable cause" and violates the state and federal Constitutions, the court said in throwing out a motorist's conviction.

Under the provision the court struck down, any motorist involved in an accident causing serious injury or death was presumed to have given prior consent to a blood, breath or urine test to determine the presence or alcohol or other drugs in his body.

Refusing the test made motorists subject to a suspension of their license for at least one year. Evidence that they refused to be tested could also be offered against them at trial.

The court said the law was problematic because it compels testing of anyone involved in a serious accident regardless of whether there is any independent reason to believe they are impaired.

The decision to overturn the law was disappointing, Clayton County District Attorney Bob Keller said.

"I understand the court's reasoning but I thought public safety concerns would outweigh the constitutional concerns," Keller said.

Keller said new legislation might be introduced in the next session of the Georgia General Assembly to bring the law back in some form.

Losing the implied consent law won't hamper police investigations completely, Israel said, but "we're going to have to work harder."

Prevention is the main key and during last weekend's Sensational Saturday event put on at Atlanta Beach by the Clayton County Schools Israel and his officers demonstrated an educational device called "Fatal Vision Goggles." Once the goggles are donned they imitate the kind of vision one would have with a blood alcohol level of .10.

The wearer is asked to complete a field sobriety test, walking heel to toe in a straight line for nine paces, turning around and walking in the same way back to the starting position. The goggles, a pair of which Israel hopes to obtain permanently one day, make the task almost impossible.

From January to August the Clayton County Police Department made 598 DUI arrests. Israel said the department would participate in the next statewide "Click It or Ticket" seat-belt safety program that will occur from Nov. 18 to Dec. 1. From Dec. 19 to Jan. 4 they will participate in "Operation Zero Tolerance" that focuses on catching impaired drivers.

Both programs use roadside checkpoints and saturated patrols.

The Supreme Court decision stems from the case of Carey Don Cooper, who was involved in a two-vehicle collision in August 2000.

He agreed to a blood test after being informed of the implied consent law by a state trooper but later challenged it in court. The trial judge rejected his motion to suppress the results of the test, which had found traces of cocaine, and he was convicted and sentenced to 15 days in jail.

The Associated Press contributed to this article.