Are Financial Arguments the Biggest Predictor of Divorce?
Criminal Defense Lawyer
One of the biggest issues married couples have that can put a strain on a relationship is finances. Many studies that have been conducted over the years reveal that if couples consistently fight about money, this could be a strong indicator that divorce may be in their future. Divorce attorneys know that many clients who cite financial issues as one of the strongest driving forces in ending their marriage. If you are contemplating ending your marriage, call a law office to speak with a member of their legal team. In the meantime, the following is a brief overview of this important issue.
Kansas State University Study
One of the largest studies conducted on this issue was done by Kansas State University. The researchers used data collected from the National Survey of Families and Households. The team analyzed data from 4,500 couples who participated in the survey’s “Examining the Relationship Between Financial Issues and Divorce” report.
The study found that it did not matter what the income level of a couple was – the results of the arguments were the same. When it comes to financial issues, the arguments between couples tend to be more intense, angrier, and last longer than when arguments are about other important issues.
It also appears that the recovery time for couples after a fight about money takes longer, as well. When these money arguments begin at the start of a couple’s marriage, data from the survey shows that the rate of marriage success is poor.
There are steps that newlyweds can take in order to avoid these financial pitfalls that could wreak havoc on their marriage. Some of these steps include:
- Couples should share with each other what their financial experiences were growing up and how finances affected family life. There could be financial emotional triggers for one partner that the other partner is totally unaware of, and these triggers could cause spending behaviors that lead to arguments.
- There should be no financial secrets between couples when they are planning on marrying. Hiding things such as high credit card debt, poor credit scores, tax liability, and bankruptcy can cause a lot of turmoil when it comes time for a married couple to apply for a mortgage or other loans. It can also cause trust issues to creep into other aspects of a couple’s relationship, with a spouse wondering what else the other spouse has not been honest about.
- It is essential for couples to discuss finances – not avoid it. Making future financial plans, such as savings, retirement, property ownership, as well as creating and sticking to a monthly budget, are all key to a couple working together to building the future.
If you are considering a divorce, an experienced divorce attorney, like a divorce lawyer from the Law Office of Daniel Wright, will be able to respond to your questions and concerns. Contact a law firm today for more information.
When an Assault Charge Impacts Your Marriage
Even the strongest marriages can go through rocky times, but when one spouse is accused of assault, it can be catastrophic for the relationship even when you have an excellent lawyer, like an assault lawyer in Oakland, CA from Hallinan Law Firm. This is especially true when one spouse is charged with assault of the other spouse. For those persons in this scenario who wish to work through this difficult chapter, it is often not possible without counseling. A licensed therapist can help the two as individuals, and as a couple. A licensed therapist can provide a professional and objective perspective that friends cannot because of their natural bias. And a therapist who specializes in counseling those who have struggled with assault and related issues will have added insight that can be invaluable. This is true whether the couple decides to remain together or go their separate ways.
When two people are in a relationship, each has their own life issues to deal with, and then there are also the issues they share as a couple. After one partner commits assault, regardless of who was the recipient of their actions, trust issues often result. If the assault was a physical expression of one spouse’s feelings of mistrust and hurt, it is an escalation of underlying existing problems. Unless the nature of those problems are explored and addressed, the assault may signal the beginning of a dangerous pattern. When spouses engage in couples counseling together, it is an opportunity to work with the counselor to find new ways to work out problems and to do so in a safe manner. Breaking old patterns that are harmful and destructive can be scary at first, but personal enrichment can be discovered in addition to beginning the healing process for the marriage.
If both spouses are not open to couples counseling, there is the option for the willing spouse to engage in individual counseling. Conversely, many couples find value in participating in couples as well as individual counseling. What they cannot gain in couples counseling, they can often experience in individual counseling. That may include one-on-one conversations where they can explore areas that may not be of interest to both spouses. It can also be helpful when underlying trust issues may it more difficult for the one spouse to work on their own issues while in couples counseling.
Anger Management Counseling
If the assault is indicative of a pattern of expressing anger in a violent way, then anger management counseling may be of tremendous benefit. It may also be ordered by the court as one of the terms of sentencing or probation. When anger is channeled in a non-violent and productive way, it can help restore harmony within the relationship.
Alcohol and Drug Addiction Counseling
It is not unusual for someone to commit assault in conjunction with the abuse of alcohol and/or drugs. If there is an addiction issue, then counseling can help the individual to work through it and reach ongoing sobriety. If both spouses share one or more addictions, they have the option of individual or couples counseling to help them beat their addictions.
To learn more about the value of engaging in counseling after a spouse is charged with assault, reach out to a therapist.
If A Parent Goes To Jail Do They Still Have To Pay Child Support?
Rarely does any parent actually plan on going to jail. However, if you end up in a situation where you must spend time behind bars, you will need to know whether you have to find a way to meet your child support obligations. It may be confusing and not really make sense to hear that incarcerated parents are still responsible for paying outstanding child support payments during this time. If you are concerned about your ability to fulfill payments, it is advised that you get help from a family law lawyer in Rockville, MD.
The Right To Child Support Modification
Statistically, around 1 in every 4 inmates at federal and state prisons have an open child support case. Millions of children are getting the funds they need through payments that the other parent is making from jail. The court may or may not grant leniency to the paying spouse, depending on the elements of their arrest, how long they will be behind bars, and other influential factors.
Every parent has the right to request a modification in child support if a significant life event has occurred and circumstances have changed. Being incarcerated is a big deal, and may impact a parent’s ability to keep up with child support payments as ordered by the court. If this is the case for you, then you can ask the court to temporarily suspend the child support order until a realistic revision can be established based on your current situation.
Options For Parents Paying Child Support From Jail
As the incarcerated parent, you may be worried about the interest that will have accumulated on overdue child support payments. You will have to eventually pay this interest on top of back payments, so it’s in your best interest to review your options so you aren’t in financial turmoil when released. An incarcerated parent can ask the court to either:
- Suspend the child support order until they have been released
- Reduce how much they owe in child support payments so it is affordable while they are living out their sentence
The judge handling the child support modification request due to incarceration, may decide to grant one of the two options above. Or, the judge may determine that the paying parent should still be able to afford the payments while behind bars, and he or she will have to continue abiding by the previous court order. The incarcerated parent may pay child support even if they aren’t making money while in jail, by using assets or income from a savings account. Other ways that child support payments can be paid include:
- Using income from rental properties
- Gathering funds from retirement or disability benefits
- Obtaining money from selling investments, such as stocks or bonds
Seeking Support While Serving a Jail Sentence
While the parent is serving their time behind bars, they can seek support from child support agencies. Such agencies can help ensure that the paying parent continues to maintain a relationship with their child, gets assistance in obtaining a job after they are released, have paternity tests performed, and receive education about their parental responsibilities during this period.
Thanks to Daniel J. Wright for their insight into family law and child support when the paying parent goes to jail.
Know Your Rights: The Exceptions for Police Intrusion into Your Home
Criminal Defense Lawyer
Sometimes it may be difficult to know what our rights are as citizens. Generally, during times of interaction with police officers, our default may be to consent to every request that a police officer asks so as to make our lives easier. If we have nothing to hide, then it may seem like there is no problem with consenting to a police officer. Though this may seem like the path of least resistance, it is important to know when you have a choice in the matter, and when you have to acquiesce to police officers’ requests.
The Fourth Amendment: Warrant Rule
The hard and fast rule (though there are always exceptions to the rule) is the rights supplied to us from the Fourth Amendment in the Constitution, which protects us from government intrusion into our houses, persons, vehicles, and papers. The rule requires that police officers get a warrant, issued by a magistrate, once the police officers have made a showing that they have probable cause to believe that evidence may be found within the area that they would like to search.
The Exceptions to the Rule
A police officer entering someone’s home or private property without a warrant is unreasonable. That is the default rule that helps protect people’s rights. There are, however, exceptional circumstances where a police officer does not need a warrant; in other words, there is a dangerous or criminal situation occurring, also known as “exigent circumstances,” that requires immediate action on the officer’s part, and time spent getting a warrant would end up causing more harm than good.
These identified exigent circumstances are the exceptions to the no-entry rule, and police officers must later prove that they had a belief that something criminal or dangerous was happening (also known as “probable cause”) and that there was evidence to be found on the scene.
Police officers may only enter private property immediately and without a warrant when:
- The officers believe that someone is in need of help or aid
- The officers believe that entry is required to protect themselves from people who they reasonably believe are armed and dangerous and on the premises
- The officers believe that evidence of a crime or contraband is about to be destroyed. Police officers, in this situation, must point to facts that can demonstrate that their belief that the evidence or contraband was about to be removed or destroyed was reasonable, and most important, imminent. Only then would their actions to intrude into a person’s property be considered reasonable. One factor that a police officer might try to prove is that the person knew that the officer was on his/her trail.
These are the limited circumstances in which police officers may enter into your home without a warrant. Without these exceptions, citizens are within their rights to not permit police officers into their homes, unless the officers present a warrant that is bolstered by probable cause.
Exigent circumstances may be difficult to evaluate and as a citizen, you may not know the reason why a police officer is attempting to enter your premises. If the police enter your home, with or without a warrant, please contact an experienced criminal defense lawyer in Rockville, MD as soon as possible. A criminal defense attorney will be able to assess the facts of your situation and help protect you from unreasonable police intrusion into your home.
Thanks to Daniel J. Wright for their insight into criminal defense and police intrusion.
Defense For Driving With A Suspended License
Criminal Defense Attorney Atlanta, GA
There are several reasons your license may be suspended. Most people innocently forget they have parking tickets, or other traffic citations for matters such as speeding or running a red light. While others have committed a criminal offense in some way, and lost their driving privileges. No matter the reason your driver’s license was suspended, you do not want to drive without a valid driver’s license. You most definitely do not want to be stopped by law enforcement while your license is suspended.
Suppose you are pulled over by a police officer and it is discovered that your driver’s license is suspended. Assuming no other criminal offenses were committed, you will likely be immediately arrested for driving with a suspended driver’s license, and have your vehicle impounded. Now you have bigger problems. No matter the reason your license is suspended, prosecutors and a judge may view this offense to be extremely serious.
While a conviction is not guaranteed, the prosecutor can pursue a conviction just so long as a few things can be proven:
- You were behind the wheel of a moving motor vehicle
- At the time that you were behind the wheel, your driver’s license was invalid by suspension or revocation.
- You were fully aware of your driver’s license suspension or revocation.
While your knowledge of a suspension is just enough to convict, if all three of the aforementioned factors were proven to be true without a reasonable doubt in your case, you can receive the maximum penalty for the offense of driving with a suspended driver’s license. This would entail possible jail time and fines.
With the right criminal defense attorney, you may be able to receive a plea for a smaller offense, which may not carry as much jail time or extensive fines. Notices for suspension are typically mailed out but this does not mean you received notice and were made aware. If this can be proven, you may not have it as bad as you think. If you or someone you know has recently been arrested for driving with a suspended driver’s license be sure to contact an experienced criminal defense attorney Atlanta, GA offers. It is extremely scary to face jail time and you are genuinely unaware of the initial offense you committed. The right attorney is the key to a successful case, and will be able to review all the details of your case, and investigate even further to introduce the possibility of lesser charges or possibly no charges at all. Speak with an attorney as soon as possible.
Contact The Lynch Law Group for their insight into criminal defense after driving with a suspended license.
The Effect of a Criminal Arrest on a Government Security Clearance
A security clearance is necessary for many employees of the federal government, and millions of private contractors working with federal government, so as to protect classified information that they may be privileged to access. For obvious reasons, the federal government is very careful about who they grant security clearances to, and the ability to receive and keep a security clearance can often be the deciding factor between qualified candidates for a government job. The guidelines for who can and can’t receive a security clearance are set by the Department of Defense in Directive Number 5220.6, which was issued in 1992 and extends to almost every other federal agency by mutual agreement. The directive contains several guidelines by which a person receiving a security clearance must be judged. These guidelines are also expected to be followed for as long as the security clearance is held, or else it can be revoked.
Most of the guidelines outlined in Directive Number 5220.6 are fairly simple and expected. The very first three, Guidelines A through C, are unquestionable allegiance to the United States, preference to no other country, and lack of immediate family in foreign countries. As confidential information can be of high value to other countries, these more patriotic guidelines act as a primary buffer to keep the secrets of the United States in the United States. There are other guidelines that analyze behaviors such as sexual misconduct, deceptiveness, honesty, alcoholism, mental health, and the financial stability of applicants for security status so as to ensure that those with security clearance are trustworthy and less likely to commit a crime or be manipulated by enemies of the United States.
Then there are the guidelines involving actually committing crimes. Guideline J states that an applicant is disqualified from receiving a security clearance if there has been any allegation or admission of, “a single serious crime or multiple lesser offenses,” regardless of whether the applicant was formally charged. Though this is a very strict standard, the guideline does allow for wiggle room. The applicant may still be granted clearance if they were acquitted of the charge, or if they can prove that it was not representative of them as a person. The ways in which the applicant can prove the latter include that they were forced to commit the crime, that the crime was not recent, that the crime was an isolated incident, or that they have been rehabilitated. Trying to prove these factors can be very difficult though, and conviction of a felony crime can often mean the end of all chances for receiving a security clearance.
Illegal drug use is a specifically identified crime that can very quickly end a bid for security clearance. According to Guideline H, any illegal drug abuse, possession, or cultivation is grounds for immediate disqualification. However, this guideline is not in place to punish those who use drugs but rather to ensure that people in possession of classified information are able to protect that information. Past drug use can be disregarded as long as the applicant is able to prove that they have rehabilitated, and have no intention to abuse any drugs in the future. That being said, discovery of any drug abuse after receipt of a security clearance will result in immediately losing that clearance, and most likely your job.
When you take a job with a security clearance, these become the guidelines that you must live by if you plan to keep your job. If at any time the agency you work for finds that you have committed a crime or are abusing drugs, then it very likely will cost you your job. That goes double if you are convicted of either. When it comes down to it, a security clearance is a privilege that comes after proving that you can be trusted to protect the secrets of the United States, and it is not a privilege that is earned easily.
DUI Defense: Trial date set in DUI case of Atlanta Hawks’ coach Mike Budenholzer
The Ajc’s reports
A trial date of Oct. 8 has been set in the driving under the influence case of Hawks coach Mike Budenholzer.
The case will be heard in Fulton County State Court by Judge Diane E. Bessen at 9 a.m.. Budenholzer entered a not guilty plea on two misdemeanor charges in the case on July 28. According to court records, Budenholzer waived a jury trial at that time.
Budenholzer faces misdemeanor charges of driving under the influence alcohol less safe and defective or no taillights from an arrest Aug. 28, 2013 after being stopped by police at 10:30 p.m. at 10th Street and Crescent Avenue in Midtown.
The case was moved to Fulton County State Court at the request of the prosecutor’s office during the initial hearing in Atlanta Municipal Court in October 2013. The statute of limitations was due to expire in three months when the case was placed on the court docket in May.
Budenholzer faces up to a year in jail, as much as a $1,000 fine, a driver’s license suspension and community services for a first-time offense. If Budenholzer is found guilty, he would also face a likely two-game suspension from the NBA.
The trial date comes between the Hawks’ first two exhibition games of the preseason. They are scheduled to play the Cavaliers in Cincinnati on Oct. 7 and the Pelicans in Jacksonville on Oct. 9.
Dekalb County Criminal Procedure
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
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?”
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.
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
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
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.
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
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
Lance W. Tyler, for appellant.
Rosanna M. Szabo, Solicitor-General, Joelle M. Nazaire, Shane R.
McKeen, Assistant Solicitors-General, for appellee.
Decatur mayor pro tem arrested for DUI
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.