DPS Legal Review

COURT DENIED MOTION TO SUPPRESS EVEN THOUGH PHLEBOTOMIST ONLY COLLECTED ONE VIAL OF BLOOD FROM DUI ARRESTEE 

At approximately 2:30 AM on March 5, 2023, a Georgia police officer made a traffic stop after seeing a vehicle driven by Hamrick “fail to maintain its lane of travel[.]” As the officer spoke to Hamrick, he “noted the smell of alcohol coming from Hamrick” and also saw an open container of an alcoholic beverage in the vehicle’s center console. The officer asked Hamrick to exit the vehicle and, during the ensuing conversation, smelled alcohol on Hamrick’s breath and noted his bloodshot, watery eyes and slurred speech.

Hamrick agreed to the officer’s request that he perform field sobriety tests. On the horizontal gaze nystagmus (“HGN”) test, the officer observed six out of six clues of impairment due to alcohol. As the officer started to give Hamrick instructions regarding the walk-and-turn test, “Hamrick leaned back against the patrol car, sighed heavily, rolled up his sleeves and put his hands behind his back.” At this point, the officer placed Hamrick under arrest and read the appropriate Georgia Implied Consent Notice, requesting that Hamrick provide a state administered chemical test of his blood. Hamrick agreed to give a blood sample.

Hamrick was transported to the police station, where a certified phlebotomist drew his blood. The phlebotomist described Hamrick as a “hard stick,” since she “was not able to find a vein from which she could draw blood in the normal antecubital area of the arm, and had to draw blood from Hamrick’s hand using a butterfly needle.” There were two vials in the Georgia Bureau of Investigation (“GBI”) blood test kit. The phlebotomist “only drew enough blood to fill one vial, but that vial was ‘fairly full.’” Hamrick’s blood test kit was delivered to the GBI for testing by its Division of Forensic Sciences (“DOFS”).

Hamrick was subsequently charged with DUI and failure to maintain lane. In the trial court, he filed a motion to suppress. The trial court denied Hamrick’s motion and “also granted an application for immediate review.” The Georgia Court of Appeals (“Court”) granted Hamrick’s application for interlocutory appeal.

(Note: In Georgia an interlocutory appeal is a method by which a litigant can challenge a trial court’s ruling before the final judgement in the case. The goal of allowing such appeals is not to waste court time and resources on a trial that might otherwise proceed, based on a mistaken legal ruling.)

In his sole enumeration of error on appeal, Hamrick argued “that the test results should be excluded because the phlebotomist did not collect two vials of blood from Hamrick” and “that the collection of two vials is mandated by DOFS’s existing written policy.”

The State argued that Hamrick “confuse[d] the guidance given by the crime lab to external agencies (e.g. officers, medical examiners, coroners) through its website with the requirements set forth in OCGA § 40-6-392 (a)(1)(A).”

At the hearing on Hamrick’s motion to suppress, the GBI forensic toxicologist who tested Hamrick’s blood “confirmed that the evidence sample received by the crime lab only contained one vial of blood taken from Hamrick.” This one vial contained “approximately five milliliters of blood.” The toxicologist testified “that she only needs 200 microliters to perform the required testing to determine blood alcohol content and that she received a sufficient sample to perform the testing mandated by the internal procedures established by DOFS.”

In its 2023 decision in Ussery v. State, the Georgia Court of Appeals found that “[w]hen a defendant challenges the legality of scientific testing conducted in connection with a charge of driving under the influence, the State has the burden of establishing compliance with the mandates set forth in OCGA § 40-6-392.” The portion of OCGA § 40-6-392 that addresses “the qualifications of the individual who performs chemical analysis of an accused’s blood, urine, breath, or other bodily substance” provides:

Chemical analysis of the person’s blood, urine, breath, or other bodily substance, to be considered valid under this Code section, shall have been performed according to methods approved by the [DOFS] on a machine which was operated with all its electronic and operating components prescribed by its manufacturer properly attached and in good working order and by an individual possessing a valid permit issued by the [DOFS] for this purpose. The [DOFS] shall approve satisfactory techniques or methods to ascertain the qualifications and competence of individuals to conduct analyses and to issue permits, along with requirements for properly operating and maintaining any testing instruments, and to issue certificates certifying that instruments have met those requirements, which certificates and permits shall be subject to termination or revocation at the discretion of the [DOFS].

(OCGA § 40-6-392(a)(1)(A))

The Court emphasized that no portion of OCGA § 40-6-392(a)(1)(A) applies “to individuals who draw the blood samples.” Rather, the Court pointed out, this portion of the statute pertains to “the testing of the samples submitted to DOFS.” A different subsection of the statute, i.e., OCGA § 40-6-392(a)(2), “addresses the qualifications of the person drawing the blood of the accused.” This subsection provides, in part:

When a person shall undergo a chemical test at the request of a law enforcement officer, only a physician, registered nurse, laboratory technician, emergency medical technician, or other qualified person may withdraw blood for the purpose of determining the alcoholic content therein, provided that this limitation shall not apply to the taking of breath or urine specimens.

The Court pointed out that the statute does not require “that the sample be collected in a particular manner, quantity, or in compliance with DOFS guidelines.” Rather, the statute mandates that the person who “perform[s] the chemical analysis of the sample be qualified and follow the testing mandates established by DOFS and that the sample be collected by a qualified individual.”

The toxicologist who tested Hamrick’s blood sample testified “that the statutorily mandated procedures for chemical analysis of a sample are different from the information that is contained within the [DOFS’s “Toxicology Section Service Manual”]. The toxicologist testified further that, although a chart in the Manual described the volume of a blood sample as a “requirement”, the amounts listed in the chart “are recommendations, not actual prerequisites to DOFS performing chemical analysis of submitted samples.”

The toxicologist testified “that she needs ‘a little bit more’ than 200 microliters to perform the [alcohol concentration] tests mandated by DOFS and that there was a sufficient sample submitted in this case to perform the testing as mandated by DOFS.” At no point did Hamrick argue that the toxicologist performed the chemical analysis of his blood improperly. Rather, Hamrick contended that “because DOFS has published guidelines and preferences for the collection of samples and because the Manual references those guidelines and preferences as ‘requirements,’ the testing performed here should be deemed inadmissible.”

The Court of Appeals found Hamrick’s argument unpersuasive and concluded, as did the trial court, “that ‘analysis,’ as set forth in OCGA § 40-6-392(a)(1)(A), was not intended to encompass the collection of a sample.” The Court explained:

Had the legislature intended to require compliance with the Manual to be a prerequisite to the admission of chemical analysis results, it could have made that plain in the statute. The same is true for the collection of the sample. Had the legislature intended to mandate that collection of blood samples follow the provisions set forth in the Manual, including those related to sample volume amounts and number of vials, it could have included statutory language mandating such compliance.

The Court also underscored that the phlebotomist’s failure to draw two vials of Hamrick’s blood “had no bearing on the scientific reliability of the testing performed by the toxicologist and was not in violation of any of the prerequisites relating to the drawing of a blood sample as set forth in OCGA § 40-6-392.” For these reasons, the Court ruled that the trial court did not err in denying Hamrick’s motion to suppress. Hamrick v. State, No. A25A1955, 2025 WL 3483971, (Ga. Ct. App., Dec. 4, 2025).

TRIAL COURT DID NOT ERR IN REJECTING DEFENDANT’S MOTION TO SUPPRESS DUI BLOOD TEST RESULTS

In October 2023, after his arrest for driving under the influence, Vij consented to a state administered test of his blood. Vij’s blood test was sent to the Georgia Bureau of Investigation (“GBI”) to be tested for alcohol. A number of days after Vij’s blood sample had been obtained—but before the GBI tested the sample—Vij’s attorney “notified the Georgia Bureau of Investigation in writing that Vij had withdrawn his consent to the blood test.” The GBI responded, informing Vij “that he could no longer withdraw his consent.” Based on the results of the GBI’s analysis, Vij was charged with DUI alcohol (per se), DUI alcohol (less safe), speeding, an open container violation, and driving without his license on his person.

Vij filed a motion to suppress the results of his blood test, arguing that, because “he had a constitutional right to withdraw his consent as long as the test had not yet been performed . . . the test amounted to an illegal, warrantless search under the Fourth Amendment.” Vij’s motion was denied by the trial court, which also certified its decision for immediate review. The Georgia Court of Appeals (“Court of Appeals” or “Court”) granted Vij’s application for interlocutory appeal.

On appeal, Vij argued that “the trial court erred in refusing to suppress the test results because he maintained a reasonable expectation of privacy in his blood even after it was drawn, and thus he could revoke his consent at any time prior to its testing.” Georgia’s implied consent law provides, in part:

The State of Georgia considers that any person who drives or is in actual physical control of any moving vehicle in violation of any provision of Code Section 40-6-391 constitutes a direct and immediate threat to the welfare and safety of the general public. Therefore, any person who operates a motor vehicle upon the highways or elsewhere throughout this state shall be deemed to have given consent, subject to Code Section 40-6-392, to a chemical test or tests of his or her blood, breath, urine, or other bodily substances for the purpose of determining the presence of alcohol or any other drug, if arrested for any offense arising out of acts alleged to have been committed in violation of Code Section 40-6-391 or if such person is involved in any traffic accident resulting in serious injuries or fatalities.

(O.C.G.A § 40-5-5(a))

The Court of Appeals rejected Vij’s argument that he could withdraw his consent at any time prior to the GBI analysis of his blood sample. The Court noted Vij’s attempt to “reframe the argument as a matter of constitutional privacy rights,” by relying “on opinions involving searches of places of residence, and on extra-jurisdictional case law.” The Court found the cases relied on by Vij “either distinguishable or merely persuasive.”

Although Vij argued that the Court of Appeals’ 2024 decision in State v. de la Paz supported his argument, the Court distinguished the de la Paz case, in which “the defendant declined to consent to a blood draw at the outset, compelling law enforcement to obtain a warrant.” Vij, on the other hand, consented to a blood test and never argued “that his initial consent to blood alcohol testing was involuntary.”

The Court also looked to its 2025 decision in Newman v. State, in which it held “that a criminal defendant ‘could not withdraw [his consent to a blood test] after submitting to a blood draw.’” The Court wrote: “We see no reason to depart from this holding here.”

Finally, the Court characterized Vij’s attempt, after the fact, to withdraw his consent to the blood test as “the equivalent of an accused revoking his consent to the examination of items already seized during a valid search, such as the subsequent testing of suspected narcotics.” Any such reading of the Fourth Amendment, the Court reasoned, “is extreme and inconsistent with our precedent.”

Therefore, the Court of Appeals concluded, the trial court did not err in denying Vij’s motion to suppress the results of his blood test. Vij v. State, No. A25A1943, 2025 WL 3685318, (Ga. Ct. App., Dec. 19, 2025).