July 2015

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Dekalb County Criminal Procedure

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This article is a good picture on criminal procedure after arrest but before indictment:

Rapper Young Thug waived Monday morning his preliminary hearing in DeKalb County court, Channel 2 Action News reported.

The rapper, whose real name is Jeffery Lamar Williams, was scheduled to be in court following his July 15 arrest on charges including terroristic threats. He is accused of threatening a security guard at Perimeter Mall on July 7.

During a preliminary hearing, authorities outline their initial case against a defendant and a magistrate judge decides if there is sufficient evidence for the case to proceed to superior court. The case also proceeds if a defendant waives their hearing.

Following Williams’ arrest, local police and the Federal Bureau of Investigation served search warrants at his Sandy Springs home, leading to additional marijuana, cocaine and weapons charges against the rapper. Those charges were filed in Fulton County.

Williams was also recently named in an indictment linking him to the April shooting of rapper Lil Wayne’s tour buses. Although Williams has not been charged in the incident, his tour manager Jimmy Winfrey was indicted on 30 charges.

Williams is best known for his 2013 single “Stoner” and is a member of Gucci Mane’s Atlanta-based record label.

DUI Defense: Williams v. The State Georgia Supreme Court Holds that Implied Consent Is Not Actual Consent

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S14A1625. WILLIAMS v. THE STATE.

HINES, Presiding Justice.

Following a bench trial, John Cletus Williams was convicted of driving under the influence of drugs (“DUI”), OCGA § 40-6-391 (a) (2), and failure to maintain lane,OCGA§40-6-48(1).1 He had moved unsuccessfully to suppress the results of a state-administered blood test2 on the basis that the test, obtained without a search warrant, violated his rights under the Fourth Amendment to the United States Constitution and Article I, Section I, Paragraph XIII of the Georgia Constitution.3 His challenge is that Georgia’s implied consent statute, OCGA § 40-5-55,4 is unconstitutional as applied in his case because consent obtained solely under the statute does not amount to voluntary consent for purposes of the Fourth Amendment and the related provision of the State Constitution.5 For the reasons that follow, we vacate the judgments of the state court and remand the case to that court for reconsideration of Williams’s motion to suppress and any consequent proceedings.

The transcript of the hearing of the motion to suppress and the immediately following bench trial reveal the following facts, which were either stipulated at trial or are not in dispute. On September 22, 2012, Williams was arrested by an officer of the Gwinnett County Police Department and charged with DUI and failure to maintain lane; the officer had “reasonable articulable suspicion” to stop Williams and probable cause to arrest him. Williams was placed in custody but was not advised of his Miranda6 rights. The officer read Williams the age-appropriate statutory implied consent notice7 and pursuant to it requested that Williams submit to blood and urine tests. The officer told Williams that it was “a yes or no question,” and Williams verbally responded “yes.” There was no other conversation about consent for the testing, i.e., the officer did not ask Williams “if [Williams] was willing to freely and voluntarily give a test.” The officer “read [Williams] the implied consent and that was pretty

6 Miranda v. Arizona, 384 U.S. 436 (86 SCt 1602, 16 LE2d 694) (1966).

7 The applicable implied consent notice for suspects age 21 or over is found 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?”

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much the end of it.” It “was an ordinary DUI,” there “were no exigent circumstances,” and no search warrant was obtained. Williams was taken to a medical center where blood and urine samples were taken for the purpose of his criminal prosecution.

The state court denied Williams’s motion to suppress his blood test,8 expressly rejecting the “reasoning” that statutory implied consent implicated Fourth Amendment concerns, and the contention that the statutory consent, in and of itself, was not a valid exception to the Fourth Amendment’s requirement of a search warrant. The state court’s analysis is flawed.

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. Cooper v. State, 277 Ga. 282, 285 (III) (587 SE2d 605) (2003). In general, searches are of two types: those conducted with a search warrant or those undertaken without one, and searches conducted outside the judicial process are per se unreasonable under the Fourth Amendment, subject only to a few

8 Neither Williams’s constitutional challenge in his motion to suppress or his arguments on appeal address his given urine sample, but only the blood test and its results.

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specifically established and well-delineated exceptions. State v. Slaughter, 252 Ga. 435, 436 (315 SE2d 865) (1984), citing Coolidge v. New Hampshire, 403 U. S. 443, 454-455 (91 SCt 2022, 29 LE2d 564) (1971). Thus, a warrantless search is presumed to be invalid, and the State has the burden of showing otherwise. State v. Slaughter, supra, citing Mincey v. Arizona, 437 U. S. 385, 390-391 (98 SCt 2408, 57 LE2d 290) (1978), and McDonald v. United States, 335 U. S. 451, 456 (69 SCt 191, 93 LE 153) (1948).

The first well-recognized exception to the warrant requirement in the context of a state-administered blood test is the presence of exigent circumstances. The United States Supreme Court in Schmerber v. California, 384 U. S. 757 (86 SCt 1826, 16 LE2d 908) (1966), addressed the Fourth Amendment implications of a warrantless blood draw in a DUI case. The Supreme Court stated it was to determine “whether the police were justified in requiring [the petitioner in that case] to submit to the blood test, and whether the means and procedures employed in taking his blood respected relevant Fourth Amendment standards of reasonableness.” 384 U. S. at 768. The Schmerber court acknowledged that “[w]hile early cases suggest[ed] that there is an

unrestricted ‘right on the part of the [g]overnment . . . to search the person of 5

the accused when legally arrested, to discover and seize the fruits or evidences of crime,’” the “mere fact of a lawful arrest” did not end the inquiry. Id. at 769. This was so because such suggestion was premised on the possibility of “more immediate danger of concealed weapons or of destruction of evidence under the direct control of the accused,” and because once there was a permitted weapons search of the arrested person it would be “both impractical and unnecessary” to achieve the purpose of the Fourth Amendment “to attempt to confine the search to those objects alone.” Id. However, the Court concluded that such considerations had “little applicability with respect to searches involving intrusions beyond the body’s surface,” and that “[t]he interests in human dignity and privacy which the Fourth Amendment protects forbid any such intrusions on the mere chance that desired evidence might be obtained.” Id. at 669, 670. Accordingly, “[i]n the absence of a clear indication that in fact such evidence will be found, these fundamental human interests require law officers to suffer the risk that such evidence may disappear unless there is an immediate search.” Id. at 770. The Court reasoned that inasmuch as “[s]earch warrants are ordinarily required for searches of dwellings,” there could not be a lesser requirement intheinstanceof“intrusionsintothehumanbody,”butnotedthis 6

was so “absent an emergency.” Id. It then concluded that the officer in the case might reasonably have believed that there was an emergency, in the sense that the delay involved in obtaining a search warrant threatened the destruction of evidence, the threat and exigent circumstance being the diminishment of the concentration of alcohol in the blood shortly after the cessation of drinking as the body eliminates it from the system. Id. Also noting that in that case, time was taken to bring the accused to a hospital and to investigate the accident scene, the Court concluded there was no time to secure a warrant, and given the “special facts,” the blood draw “was an appropriate incident to petitioner’s arrest.” Id. at 771. Thus, Schmerber established the legal nexus between the transient and dissipating nature of an intoxicant in the human body and presence of an exigency for the purpose of securing a blood test without the necessity of a search warrant.

This Court carried such nexus further in Strong v. State, 231 Ga. 514 (202 SE2d 428) (1973), when it determined that in the situation in which there is probable cause to arrest an individual for DUI, the “evanescent nature of alcohol in the blood,” in and of itself, necessitated that the defendant’s blood sample be extracted in order “to prevent a failure of justice from a certain disappearance

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of this evidence.” Id. at 518. In other words, the dissipation of the intoxicant in the body automatically, as a matter of law, provided the exigency for a warrantless blood test incident to the arrest. However, prior to the bench trial and the denial of the motion to suppress in Williams’s case, the United States Supreme Court issued its decision in Missouri v. McNeely, 569 U. S. ___ (133 SCt 1552, 185 LE2d 696) (2013), in which it 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. 569 U. S. ___ (133 SCt at 1556). Instead, it concluded that,

while the natural dissipation of alcohol in the blood may support a finding of exigency in a specific case, as it did in Schmerber, 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.

Id. at 1563. Thus, to the extent that Strong v. State holds otherwise, it is hereby overruled. In the present case, there is no dispute that there were no exigent circumstances. Consequently, the analysis in this case must then focus on the voluntary consent exception to the warrant requirement because it is well settled in the context of a DUI blood draw that a valid consent to a search eliminates the 8

need for either probable cause or a search warrant. Cooper v. State, supra at 291 (VI), citing Schneckloth v. Bustamonte, 412 U. S. 218, 219 (93 SCt 2041, 36 LE2d 854) (1973).

As noted, it is uncontroverted that Williams submitted to the blood test after the police officer read him the implied consent notice for suspects age 21 or over. However, in Cooper v. State, supra, this Court plainly distinguished compliance with the implied consent statute from the constitutional question of whether a suspect gave actual consent for the state-administered testing. We emphasized such remaining question in regard to the validity of the consent, confirming that “[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.” Cooper v. State, supra at 291 (VI), citing, inter alia, Bumper v. North Carolina, 391 U. S. 543 (88 SCt 1788, 20 LE2d 797) (1968).9 And, it can certainly be argued that the need for

9 In Cornwell v. State, 283 Ga. 247 (657 SE2d 195) (2008), this Court stated that inasmuch as there was probable cause for Cornwell’s arrest for DUI and the State had complied with statutory implied consent requirements, Cornwell could not complain that the state-administered urine test for the presence of alcohol and drugs violated his State and Federal Constitutional rights to be free from unreasonable searches and seizures; therefore, his motion to suppress was properly denied. Id. at 249 (2). However, such statement was in direct response to Cornwell’s argument that the implied consent statute was unconstitutionally applied to him because it permitted warrantless compelled testing of his bodily fluids without proof of the existence of exigent circumstances. Our

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the State to demonstrate actual consent for the purpose of exception to the warrant requirement and its constitutional implications is reinforced by the analysis of the United States Supreme Court in McNeely.

The facts of McNeely did not lend themselves to the Supreme Court expressly addressing the issue of a suspect’s consent to the testing of bodily fluids as satisfying Fourth Amendment concerns because the defendant in that case refused to consent to a blood test, McNeely, 569 U. S. ___ (133 SCt at 1557); however, a plurality of the Court was plainly rejecting a per se rule for sustaining an exception to the Fourth Amendment’s requirement of a search warrant in favor of a case-by-case assessment based on the totality of the circumstances, albeit in the narrow context of exigency. Id. at 1563. Nevertheless, sister states have considered statutory implied consent as an exception to the Fourth Amendment’s warrant requirement in the wake of McNeely, and have reached varying conclusions as to whether McNeely governs that issue; but, what the cases seem to indicate is that mere compliance with statutory implied consent requirements does not, per se, equate to actual, and

determination, in no manner, intended to blur the distinction between implied consent and actual consent for the purpose of Fourth Amendment analysis.

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therefore voluntary, consent on the part of the suspect so as to be an exception to the constitutional mandate of a warrant. See, e.g., People v. Harris, ___ Cal.Rptr.3d ___, 2015 WL 708606 (Cal App. 4 Dist. 2015); Weems v. State, 434 SW3d 655 (Tex. App. 2014); State v. Padley, 354 Wis.2d 545 (849 NW2d 867) (Wis. App. 2014); State v. Moore, 354 Or. 493 (318 P3d 1133) (Or. 2013); State v. Brooks, 838 NW2d 563 (Minn. 2013). See also Cooper v. State, supra at 291 (VI).

As the Wisconsin Court of Appeals aptly observed in Padley:

“Implied consent” is not an intuitive or plainly descriptive term with respect to how the implied consent law works. . . . [It may be] a source of confusion. . . . [T]he term “implied consent” [may be] used inappropriately to refer to the consent a driver gives to a blood draw at the time a law enforcement officer requires that driver to decide whether to give consent. However, actual consent to a blood draw is not “implied consent,” but rather a possible result of requiring the driver to choose whether to consent under the implied consent law.

State v. Padley at 564.
In considering Williams’s motion to suppress, the state court failed 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

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consent under the totality of the circumstances. Consequently, the judgments of the state court are vacated, and the case is remanded to that court for proceedings consistent with this opinion.

Judgments vacated and case remanded with direction. All the Justices concur.

Decided March 27, 2015.
OCGA § 40-5-55; constitutional question. Gwinnett State Court. Before

Judge Iannazzone.
Lance W. Tyler, for appellant.
Rosanna M. Szabo, Solicitor-General, Joelle M. Nazaire, Shane R.

McKeen, Assistant Solicitors-General, for appellee.

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DUI Defense: DeKalb DUI driver in triple fatality crash attempted to flee

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he alleged drunk driver accused of causing a triple fatal crash Sunday morning attempted to leave the scene in a Good Samaritan’s vehicle, DeKalb police said.

DeKalb County police spokesman Capt. S.R. Fore said Monday that 27-year-old Marvin Lynch had been arrested in connection with the wreck at the intersection of Marbut Road and Lithonia Industrial Boulevard. Lynch, a Marietta resident, was being held at the DeKalb County jail on three counts of vehicular homicide and individual charges of DUI, hit and run and failure to obey a traffic device.

According to Fore, Lynch was driving a Mercedes SUV along Marbut Road at about 7 a.m. Sunday when he ran the red light at Lithonia Industrial Boulevard. He collided with a Nissan Maxima, killing all three occupants.

Those occupants were identified Monday as Cora Rhodes Lyles, 65, of Stone Mountain, and Willie Mae and Vernon Webster Hatley, 65 and 67, respectively, of Raleigh, N.C.

Raleigh TV station WRAL reported that the trio was on the way to church.

After the crash, Lynch allegedly attempted to leave the scene by “getting in the driver’s seat of a vehicle belonging to (a) passerby that stopped to render aid.”

“He was subdued by others on scene until officers arrived,” Fore said.

Speed and alcohol contributed to the crash, Fore said.

Decatur Mayor Pro Tem pleads guilty to drunk driving, sentenced in city court

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Decatur Mayor Pro Tem Kecia Cunningham pleaded guilty to charges of driving under the influence and was sentenced on July 8.

Cunningham appeared in Decatur City Court before a DeKalb County Magistrate Judge, Matt McCoyd. The judge was filling in for the city judges, who are appointed by the City Commission.

McCoyd accepted the plea and sentenced Cunningham to 12 months probation, a $750 fine and 40 hours of community service. As part of her sentence, she must undergo a drug and alcohol evaluation. She is also supposed to serve one day in jail, but the judge gave Cunningham credit for the time she served after she was arrested on June 11.

He advised Cunningham that she still had the right to a trial on the charges. Cunningham’s attorney said she understood but wanted to put the episode behind her.

“She has taken full responsibility and is prepared to accept the sentence of the court,” her attorney said.

Under the terms of the plea deal, Cunningham will have a limited driving permit because this is her first DUI offense.

Cunningham has served on the City Commission since 1999, was arrested by a Decatur Police Officer shortly after midnight on June 11.

The officer was travelling eastbound on East College near the intersection with Sams Crossing. He noticed a 2002 Lexus traveling south on Sams Crossing. The officer said the Lexus, “Made an improper right turn onto East College Avenue and failed to maintain its lane.”

“I observed the Lexus make a wide right turn, enter into the center lane of travel, straddling the dotted white line and jerk back into the curb lane headed westbound,” the officer wrote.

The officer made a U-turn and caught up with the Lexus to observe the behavior of the driver. He saw the Lexus begin to “drift heavily within its lane.” The Lexus moved over into the center lane without using a turn signal.

“While traveling the center lane, the Lexus crossed over the double solid yellow line, began straddling the yellow line with the center of the vehicle with both driver side tires in the opposite lane of travel,” the officer wrote. “After traveling several feet, the Lexus drifted back into its own lane of travel.”

The officer turned on his lights and the Lexus pulled into the rear parking lot behind Trackside Tavern. The Lexus is a convertible and its top was down during the stop, the officer noted. He said he immediately noticed a strong odor of alcohol when he began talking to Cunningham. When the officer asked her why she didn’t maintain her lane, she explained that “Something happened near my feet.” Cunningham was not wearing any shoes at the time.

Cunningham told officers she was coming from her office on Johnson Ferry Road. The officer asked if she made any stops on the way home, and Cunningham said she’d been to the Capital City Cigar Club, 19 miles outside the Decatur City Limits. She told the officer she’d had a cigar and a glass of wine 45 minutes before the stop.

During the field sobriety test Cunningham was unsteady on her feet. She had trouble taking the walk and turn test, and at one point had to stop walking to regain her balance. Her blood alcohol level was .147. The legal limit in Georgia is .08.

Cunningham later admitted to the officer she had a vodka and cranberry in addition to a glass of wine. The officer found a bottle opener inside the Lexus and a wine cork inside the trunk.

When Decaturish first reported the arrest, Cunningham expressed regret for her actions.

“I accept responsibility and intend to accept the consequences,” she said. “I anticipate this will be handled as any other matter, and I am embarrassed. It’s a personal matter that I’m embarrassed by.”

Decatur mayor pro tem arrested for DUI

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Decatur Commissioner Kecia Cunningham was arrested this month for driving under the influence.

Cunningham, who serves as the commission’s mayor pro tem, was arrested June 11.

“I accept responsibility and intend to accept the consequences. I anticipate this will be handled as any other matter, and I am embarrassed. It’s a personal matter that I’m embarrassed by,” she told Decaturish news website.

According to the police report, Cunningham was stopped shortly after midnight on June 11 after a Decatur police officer noticed her making an improper turn on East College Avenue near Sams Crossing. Cunningham also failed to maintain a lane and was driving erratically, according to the report.

Cunningham told the police officer she stopped at the Capital City Cigar Club in Sandy Springs after work before heading home and that she had a glass of wine, a vodka and cranberry cocktail and a cigar. She agreed to a breathalyzer test and her blood alcohol level was .147; in Georgia, one is considered drunk with a score of .08 or higher.

Cunningham made history in 1999 when she became the first openly gay African American elected to public office in Georgia and the Southeast when she was elected to the Decatur Commission. In 2013 she was named mayor pro tem of Decatur and was reappointed to the post in 2015.

During her time on the commission, Cunningham was a leading proponent of the city adopting a domestic partner benefits policy for its employees.

In 2013 she told Georgia Voice she is bisexual.

Cunningham is up for re-election this year.