DPS Legal Review

GEORGIA IMPLIED CONSENT WARNING NOT “UNCONSTITUTIONALLY COERCIVE”

A police officer made a traffic stop on a vehicle driven by La Anyane, who failed to maintain her lane and was using her high-beams improperly. The officers on the scene “noticed that her eyes looked ‘red’ and ‘glassy,’ her breath smelled of alcohol, her speech was slurred, and her shirt was stained with what appeared to be red wine.” La Anyane claimed to have consumed only one drink.

La Anyane failed all three field sobriety tests administered by the officers, i.e., the horizontal-gaze nystagmus, walk and turn, and one-leg stand. The results of La Anyane’s portable breath test were positive for alcohol. Based on the totality of the circumstances, the officers arrested La Anyane for DUI. One of the officers read the Implied Consent warning to La Anyane, requesting that she submit to a state-administered test of her blood:

La Anyane consented to have her blood drawn and tested. During the test, she asked, “What is this for,” and an officer responded that it was “part of [her] DUI process.” Apart from that question, La Anyane did not say or do anything to suggest she had changed her mind about submitting to the blood test or that she was doing so against her will.

The state-administered test of La Anyane’s blood showed a blood alcohol content of 0.117 grams per 100 milliliters, in excess of the per se DUI alcohol limit of 0.08.

La Anyane was charged with DUI less safe, failure to maintain lane, and failure to dim headlights. (Note: The Supreme Court opinion does not explain why La Anyane was not also charged with DUI per se, even though her blood alcohol content was 0.117.)

La Anyane filed a motion to suppress the results of her blood test, which the trial court denied. A jury later found La Anyane guilty of all charges.

On appeal to the Supreme Court of Georgia,

La Anyane argues that Georgia’s entire implied-consent statutory scheme is unconstitutional on its face and as applied to her. She contends that the implied-consent warning unconstitutionally coerces drivers to consent to a blood test by telling them, falsely, that their consent is required, and that their refusal can be offered against them at trial. She contends that because any consent obtained through the implied-consent warning is not free and voluntary, the implied-consent statutory scheme unconstitutionally authorizes law enforcement officers to take drivers’ blood without a search warrant, valid consent, or any other exception to the warrant requirement. And she contends that the trial court made two evidentiary errors by (1) refusing to let her cross-examine an expert with a study about field sobriety tests and (2) allowing evidence about her blood alcohol content even though she was charged with DUI less safe and not DUI per se.

(Note: This summary does not address La Anyane’s argument regarding cross-examining the expert with a field sobriety study.)

The Supreme Court rejected La Anyane’s argument that “Georgia’s implied-consent statutory scheme violates the Fourth Amendment to the United States Constitution because it authorizes police officers to take the blood of a DUI suspect without a search warrant or a valid exception to the warrant requirement.” Although the implied-consent scheme contemplates a driver’s consenting to a blood test (and, therefore, being a valid Fourth Amendment search), La Anyane argues that, due to its “unconstitutionally coercive” language, “a driver who agrees to a blood test has not given free and voluntary consent.” Therefore the Supreme Court analyzed whether La Anyane’s consent to the blood test was “freely and voluntarily given.” The Court wrote:

La Anyane does not dispute that she gave the police her consent to have her blood drawn and tested. But she points to one circumstance that she says made her consent not truly voluntary: the implied-consent warning the police read to her before giving her consent was, in her view, “unconstitutionally coercive.” She focuses on two aspects of the implied-consent warning: the statement that Georgia “has conditioned your privilege to drive upon the highways of this state upon your submission to state administered chemical tests,” and the warning that “[y]our refusal to submit to blood or urine testing may be offered into evidence against you at trial.” In La Anyane’s view, these statements mislead drivers about their constitutional right not to agree to chemical testing.

The Court rejected La Anyane’s argument that the implied-consent warning was coercive, as it does not state that drivers are “required” to submit to a blood test. Rather, the Supreme Court found, it had “already rejected” this argument in its 2017 decision in the Olevik case. In Olevik, the Supreme Court “concluded that the implied-consent warning clearly tells drivers that they can choose not to consent to chemical testing.” The Olevik court wrote:

Because the notice refers to a right to refuse, advises suspects of the consequences for doing so, and concludes with a request to submit to testing, a reasonable suspect relying solely on the notice should understand that the State is asking for a suspect’s cooperation, rather than demanding it, and that they have a right to refuse to cooperate.

The Supreme Court also rejected La Anyane’s argument that the Georgia implied consent warning “is unconstitutionally coercive because it tells drivers, falsely, that their refusal to consent to a blood test can be used against them[.]” The Court determined that La Anyane’s claim “fails at its premise: because she has not established that the implied-consent warning was ‘false,’ her claim that it is unconstitutionally coercive on that basis fails.”

The Court concluded that since “La Anyane failed to establish that the implied-consent warning is unconstitutionally coercive, her Fourth Amendment claims cannot succeed.”

Next, the Supreme Court pointed out “that La Anyane gave the police express consent to draw her blood, and she has not established that her consent was coerced by the implied-consent warning or otherwise.” Therefore, the Court concluded, “the draw of her blood was a valid search under the Fourth Amendment[,]” and La Anyane “lack[ed] standing to advance her broader argument that the law is unconstitutional on its face.” As the Supreme Court of Georgia reasoned in a 2018 decision, “[A] litigant who has not established a violation of her own constitutional rights ‘cannot challenge a law on the ground that it might conceivably be applied unconstitutionally to others.’” (Emphasis added.)

La Anyane also argued “that the trial court abused its discretion by allowing the State to introduce evidence about her blood alcohol content.” She maintained that, since she was not charged with a DUI per se alcohol violation, evidence of her blood alcohol content “was not relevant and [was] prejudicial given the specific offense [DUI less safe] with which she was charged.” The Court was not persuaded by this argument:

First, La Anyane’s blood alcohol content was relevant to the charge of DUI less safe. Evidence is relevant if it has “any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” In a prosecution for DUI less safe, one element of the charged offense is that the defendant was “under the influence of alcohol.” It should go without saying that a chemical blood test showing that La Anyane had alcohol in her bloodstream while driving does make it more probable that she was driving under the influence of alcohol.
(Citations omitted.)

OCGA § 24-4-403 states: “Relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.”

La Anyane also argued “that evidence about her blood alcohol content was unfairly prejudicial — especially since the prosecutor emphasized it in his closing argument — and that it should have been excluded under OCGA § 24-4-403[.]” The Supreme Court disagreed:

The fact that La Anyane had enough alcohol in her system to exceed the limit set by the General Assembly made it more likely that she was “under the influence” of alcohol, and it was not unfair for the State to present the two numbers side by side — the legal limit of 0.08 and La Anyane’s blood alcohol content of 0.117 — to give the jury context about the amount of alcohol in her bloodstream.

Therefore, the Court concluded, the trial court was “within its discretion to admit this evidence[.]”
La Anyane v. State, No. S24A1112, 2025 WL 676635 (Ga. Sup. Ct., March 4, 2025).

Georgia Court of Appeals

TRAFFIC STOP WAS NOT PROLONGED BY K-9’S FREE-AIR SNIFF FOR DRUGS

On January 18, 2021, Sergeant Adam Pendelton with the Peachtree City Police Department was on patrol when he saw a driver not wearing his seatbelt in a truck without a license plate. Sergeant Pendelton pulled over the truck, driven by Dean, and walked towards the truck’s passenger-side door. During this time, Dean told Sgt. Pendelton that both the older model truck’s passenger-side door and window (operated by hand cranks) did not work. Sergeant Pendelton then walked around to the driver’s side of the vehicle, “where Dean provided the documents requested by Pendelton through a small triangular vent window on the door—indicating that the main driver’s side window could not open.”

As Sgt. Pendelton walked towards the driver’s side and spoke to Dean, he “detected the strong scent of an aerosol air freshener, which led him to believe the interior of the vehicle was recently sprayed.” Based on his experience, Sgt. Pendelton was concerned that the aerosol spray might have been used to mask the odor of marijuana. For his protection and “[d]ue to the truck’s proximity to the roadway [,]” Pendelton requested that Dean exit the truck while he inspected the documents he had asked Dean to produce, including a bill of sale. Pendelton claimed that he only had the bill of sale—but no license plate—because he had “recently purchased the vehicle.”

Notably, Sergeant Pendelton asked Dean multiple times to exit the truck before Dean actually did so. As Pendelton then sat in his patrol car reviewing the documents and running both a criminal check and a check on the truck’s VIN (vehicle identification number), he told Dean that, in his experience, “people who do not want to exit a vehicle or roll down the windows typically do so to prevent an officer from detecting the odor of marijuana.”
Another police officer arrived on the scene as backup “[j]ust after Sergeant Pendelton began writing the citation[.]” Pendelton then asked the other officer to complete the citation, immediately after which Pendelton “retrieved a K-9 from his patrol car and began a free-air sniff of the vehicle’s exterior.” After less than 30 seconds, the K-9 alerted on the vehicle. Pendelton then searched the interior of the truck, “where he smelled and located less than one ounce of marijuana and observed a can of air freshener on the floor.”

Dean filed a motion to suppress the marijuana found during the vehicle search, contending that the police “prolonged the traffic stop without reasonable articulable suspicion.” The trial court granted Dean’s motion, explaining that “the smell of air freshener and the use of the small vent window did not provide reasonable articulable suspicion such that the detention could be extended to conduct a free-air sniff.” The State appealed the trial court’s ruling.

Relevant Caselaw regarding Whether K-9 Free-Air Sniffs Prolonged Traffic Stops

In its 2015 decision in Rodriguez v. United States, the U.S. Supreme Court wrote: “The critical question, then, is not whether the dog sniff occurs before or after the officer issues a ticket, … but whether conducting the sniff ‘prolongs’—i.e., adds time to—‘the stop[.]’ ” In a 2015 decision, the Georgia Supreme Court held that a traffic stop “was not prolonged when [a] free air sniff was conducted while [the] officer awaited the return of computer records check[.]” In 2023, the Georgia Court of Appeals held “that because ‘the free-air sniff occurred within five minutes of the initial stop with a K-9 who was already present on the scene and while the officers were still awaiting results from the check on [the appellant’s] license, [the appellant] has failed to establish that the free-air sniff unreasonably prolonged the initial detention.’”

In a 2015 decision with facts comparable to those in Dean’s case, the Georgia Court of Appeals held that a traffic stop was not unreasonably prolonged by a K-9’s free air sniff “when ‘it did not hinder the officers’ timely completion of the mission of the traffic stop’ and ‘was initiated by one officer while a second officer finished filling out the written warning and while the officers waited for dispatch to return the check on [the] driver’s license information[.]’” In contrast, a 2023 Georgia Court of Appeals decision held that a traffic stop

was prolonged beyond the time required to issue a warning ticket for following too closely when “the sergeant clearly diverted from the task of issuing a written warning citation and abandoned the traffic investigation to instead pursue further questioning of the driver about her candle business, a matter entirely unrelated to the traffic stop[.]”

Court of Appeals’ Analysis re: Trial Court’s Grant of Dean’s Motion to Suppress

In Dean’s case, the trial court relied on the Georgia Court of Appeals’ 2002 ruling in State v. Thompson in support of its decision to grant Dean’s motion to suppress the marijuana found by Sgt. Pendelton when he searched the interior of Dean’s truck. The Georgia Court of Appeals disagreed that Thompson was an appropriate case for the trial court to rely on: “In Thompson, the defendant had already received a warning citation and his license and insurance information had been returned when the officer conducted the free air search.”

Unlike in Thompson, the Court of Appeals reasoned, the video of Dean’s traffic stop “show[ed] that a second law-enforcement officer arrived while Sergeant Pendelton was still in the process of writing the citation; the second officer took over the task of completing the citation; and while the second officer continued working on the citation, Pendelton conducted the free-air sniff.” The Court of Appeals noted that the trial court itself found that “‘[c]oncurrently to [the second officer] finishing up the citation, Sgt. Pendelton informed [Dean] that [he] would walk the dog around [the] vehicle’ before immediately retrieving the dog and beginning to do so.” Therefore, the Court of Appeals concluded, “because the free-air sniff occurred concurrently with the writing of the citation, the stop was not prolonged and the trial court erroneously granted the motion to suppress.” Consequently, the Court of Appeals reversed the trial court’s grant of Dean’s motion to suppress. State v. Dean, No. A25A0160, 2025 WL 853626 (Ga. Ct. App., March 19, 2025).