☢ test - Í
repeated almost verbatim the language of OCGA § 40-5-67.1(b)(3), which sets forth the required notice for commercial drivers. These notices advised Becker that if he refused the testing, he would be disqualified from operating a commercial motor vehicle for a minimum of one year. The notices did not advise Becker that refusal to submit to the tests could also disqualify him from operating a private motor vehicle, as such language is not included in the statutory notice set forth in OCGA § 40-5-67.1(b)(3). At the suppression hearing, Becker argued that Rehberg's failure to warn him about possible suspension of his private driving privileges violated a provision of the Uniform Commercial Driver's License Act, OCGA § 40-5-153(c). That Code section states that a commercial driver who is asked to submit to chemical testing must be warned ‘that a refusal to submit to the test will result in that person's being disqualified from operating a commercial motor vehicle for one year under Code Section 40-5-151 and from operating a private motor vehicle as provided in Code Section 40-5-67.1.’ [fn] OCGA § 40-5-153(c). The trial court agreed with Becker, finding that the notices did not comply with § 40-5-153(c) and that this lack of compliance was an additional basis for suppressing the results of the chemical tests. We reject this analysis,” as defendant consented to the test with this warning alone – the additional warning about consequences of refusal became inoperative, and its omission was “harmless. After hearing that refusal to consent to chemical testing could be used against him in court and would result in suspension of his commercial driver's license for one year, Becker agreed to take the tests. For him, those consequences alone were apparently severe enough to justify consenting. Being told that refusal to consent would result in an additional harsh consequence – suspension of personal driving privileges – could only have tipped the balance further in favor of consenting. The omission was therefore immaterial.” No evidence here that officer intentionally misled defendant. Query: different result if defendant had refused? Seems likely. 17. NOTICE – LANGUAGE/UNDERSTANDING State v. Stewart, 286 Ga.App. 542, 649 S.E.2d 525 (June 20, 2007). Trial court erred in suppressing implied consent refusal where warning properly read (several times), but defendant didn’t understand it. “The law views the implied consent to chemical testing, or the revocation of that consent, as valid so long as the arresting officer reads the driver the implied consent notice set forth in OCGA § 40-5-67.1(b). See, e.g., Leiske v. State, 255 Ga.App. 615, 617(2) (565 S.E.2d 925) (2002) (‘The determinative issue with the implied consent notice is whether the notice given was substantively accurate so as to permit the driver to make an informed decision about whether to consent to testing.” (Citation and punctuation omitted.)); Furcal-Peguero v. State, 255 Ga.App. 729, 732-733 (566 S.E.2d 320) (2002) (consent valid so long as implied consent notice read to driver); State v. Brookbank, 283 Ga.App. 814, 816 (642 S.E.2d 885) (2007) (refusal valid where implied consent notice given.) Notably, however, ‘drivers are entitled only to be advised of their rights under the implied consent law, that is, to have the implied consent notice read to them. The law does not require the arresting officer to ensure that the driver understands the implied consent notice. ’ (Citations and footnote omitted; emphasis original.) Furcal-Peguero, supra, 255 Ga.App. at 732-733. See also, [ State v. Webb, 212 Ga.App. 872, 873 (443 S.E.2d 630) (1994)] (‘In all cases the court is required only to find that the implied consent law was conveyed to the driver. The State is under no duty to prove that the ... driver fully understood his rights under [that] law.’) (emphasis in original.); Rodriguez v. State, 275 Ga. 283, 285-286(2) (565 S.E.2d 458) (2002) (no requirement that the implied consent notice be read in any language other than English, even where the driver speaks no English). The rationale underlying this rule is obvious: to hold otherwise, and allow an intoxicated driver’s professed inability to understand the implied consent warning to vitiate either the implied consent or the revocation of it, would so undermine OCGA § 40-5-55(a) as to render it meaningless. Indeed, such a holding would actually benefit most those drivers who pose the greatest threat on the road – i.e., those who are so impaired that, even though conscious, are unable to comprehend their circumstances.” Accord, Monas v. State , 270 Ga.App. 50, 606 S.E.2d 80 (October 12, 2004) (same facts). Rodriguez v. State , 275 Ga. 283, 565 S.E.2d 458 (June 24, 2002). DUI conviction affirmed; implied consent law isn’t unconstitutional for failure to require warning to be read in language spoken by driver. 1. No equal protection violation due to accommodation of hearing impaired persons provided by OCGA § 24-9-103 (officers must attempt to obtain a qualified interpreter to explain implied consent warning to hearing impaired driver). “[B]ecause hearing impaired persons physically cannot learn to understand an implied consent warning read to them in English, whereas non-English-speaking persons such as Rodriguez have no hearing disability and have the potential to understand such a warning, we conclude that Rodriguez is not similarly situated to a hearing impaired person. See Sisson v. State, 232 Ga.App. 61, 63, 499 S.E.2d 422 (1998).” 2. No equal protection violation based on different treatment of English-speakers vs. non-English speakers; although the two groups are similarly situated, “a language classification by itself, particularly a broad English- speaking versus non-English-speaking one, generally is not equated with national origin or other suspect classification, [cits.]” so rational relationship test applies, and the statute thus passes constitutional muster. “First, reading all drivers their implied consent rights in English will advise most people of their implied consent rights. [Cit.] Second, requiring that
Made with FlippingBook Ebook Creator