Short version - The Georgia Supreme Court just upheld a ruling that drivers caught for DUI can argue that they were too drunk to consent to voluntary breath, blood or urine tests. I’d never thought of this before, but to my limited understanding, it makes a lot of sense. In any other context, being too drunk to consent has been accepted for a long time.
Some money quotes:
I’m not sure there’s a debate here. Mostly I thought it was an interesting argument and I’m now kind of surprised it wasn’t raised long ago.
So they’re trying to avoid a conviction for drunk driving by claiming they were drunk? Isn’t that like responding to the field sobriety test by saying “I couldn’t do that even if I was sober”.
“You can’t fire me! I QUIT!”
“You can’t try and convict me for murder! I CONFESS!”
In the words of a certain wise Vulcan, “A difference that makes no difference is no difference.”
In the context of the Georgia case, if you can throw out the non-consensual sobriety test, is there some mechanic that can prohibit the confession that caused the sobriety test to be considered non-consensual? Because if not, that’s a really dumb defense strategy.
Yes. And simultaneously, the prosecution is arguing that the defense wasn’t drunk and therefore able to provide consent to the voluntary test that proves they were drunk.
I’ve been thinking about this. This might hinge on the fact that “too drunk to consent” and “too drunk to drive” may have different definitions in law.
“Too drunk to drive”, from my uneducated recollection, depends solely on a specific BAC number, which can only be determined by the very testing that “too drunk to consent” would retroactively prevent.
“Too drunk to consent” isn’t explicitly “too drunk to do anything responsible”. You can make a convincing hypothetical assertion that “too drunk to consent” is a lower degree of incapacitation than that required to convict for DUI/DWI, so that hypothetical gap is the “can’t convict even on the basis of that admission” level.
ETA: IANAL, and much of law is too complicated and unintuitive for lay analysis, so consider my speculation to be fully wild-ass and uninformed.
I though about this many years before, interesting to see it finally came up in legal proceedings. It does point towards that the voluntary breathalyzer test as used may be inherently illegal to use as evidence to convict, but may help a person prove he is in the clear.
You can’t do any medical tests without consent. There are a few exceptions but they are life-saving not incriminating. It’s a (if not the) basic principle of medical ethics.
GA does have an implied consent tied to the drivers license but the wording was found to be confusing. So it can be argued that it doesn’t replace actual consent.
I do medical research, so I think about consent a lot. It’s very tricky and easy to be unintentionally coercive. I can’t imagine starting from an adversarial relationship.
The field tests are generally done to gather evidence to support an arrest. Post-arrest, the real test is given. This sounds like an, I must say clever, way to nullify the grounds for the arrest in the first place.
Disclaimer: Drunk driving is bad, mmmkay?
I am not a lawyer. However, the prosecutor interviewed for the article says that nothing about the test can be mentioned in court once it gets thrown out. I assume that includes the reason, as you can’t talk about the reason without acknowledging the test. I suspect the first defendant to use this defense must have been more than a little nervous about self-incrimination.
I have no idea what the answer is. Perhaps more research and guidance on level of alcohol consumption and ability to consent? I agree that the catch-22 is subverting true justice, but the ethics around consent are bedrock ideas and not taken lightly, for very good reason.
The defense would go “I was too impaired to give consent. I wasn’t too impaired to drive, and you can’t prove it, because the only standard for that is based on a Blood Alcohol Content the judge just threw out because I was too impaired to give consent.”
Google tells me the Georgia code has 6 tests for “under the influence”, of which two seem to be objective (based on a medical measurement), three seem to be subjective, and one is a rule combining the other rules:
Putting on my “not lawyer” hat, if the subjective tests (specifically test 1, “Under the influence of alcohol to the extent that is less safe for the person to drive”) can be made to stick even after the BAC measurement is tossed (removing test 5), the conviction can be preserved. But it sounds like a re-trial to me.
Editorial: I hate that kind of subjective test. I assume that’s why the law also contains the objective criteria like .08 BAC, but it looks to me that the tests are in parallel, so if a prosecutor can convince the jury that the defendant was “under the influence” without objective numbers (say, by witness testimony of apparently intoxicated behavior), you can be convicted. I guess that’s where, for instance, a defense’s alternate theory (plausible alternate explanation for witnessed behavior) would matter.
2nd Editorial: As much as I love pontificating about stuff I have no actual knowledge of, I would really love it if an honest-to-God lawyer could step in here and comment. Especially one admitted to the Georgia Bar, and really especially one practicing there as well. But I’d settle for any qualified professional, which I clearly am not.
Well I suppose if the standard for too drunk to consent is lower than too drunk to drive (which makes even less sense than the rest of this) then he could be trying to wriggle out that way.
In the end, aren’t they both examples of “too drunk to make good decisions”? Not that it should be illegal to make poor decision per se. But I think a sliding scale of too drunk for this, but not that - sounds bad to me. Either you’re drunk and can’t make good decisions (sex, driving, consent), or you aren’t.