I’m often asked — by lawyers, judges, and prosecutors — why I believe Georgia’s current implied consent warning, particularly as it relates to blood testing, raises serious constitutional concerns.
The issue centers on what drivers are told after a DUI arrest. The implied consent warning states that if you refuse a blood test, that refusal can be used against you in a criminal trial. It also warns that the State can suspend your driver’s license for refusing the test.
The constitutional concern arises from the Fourth Amendment, which protects individuals from unreasonable searches and seizures. A blood draw is considered a search under the law. As a result, individuals generally have a constitutional right to refuse a warrantless blood test.
The argument is that the State should not be able to penalize someone for exercising a constitutional right. Conditioning one right — such as the privilege to drive — on the waiver of another constitutional protection raises what’s known as an “unconstitutional conditions” issue. In other words, the government cannot require you to give up one constitutional right in order to preserve another important interest.
The Fourth Amendment has been a foundational protection in our country since the Bill of Rights, and similar protections are echoed in the Georgia Constitution. The debate over implied consent warnings and blood test refusals centers on how those constitutional protections intersect with DUI enforcement.
These are complex and evolving legal issues, and they continue to be litigated in courts across Georgia. The admissibility of blood tests and blood test refusals often depends on the specific facts of the case and the current state of the law at the time the issue is raised.
