DPS Legal Review

Georgia Court of Appeals

TROOPER-PHLEBOTOMIST IS AN “OTHER QUALIFIED PERSON” AUTHORIZED TO CONDUCT BLOOD DRAW ON DUI DEFENDANT

On December 4, 2022, in the early morning hours, Georgia State Patrol Trooper Jared Davis was on patrol in Villa Rica (Carroll County) when he initiated a traffic stop on a speeding vehicle driven by Vivian Snyder. While speaking with Ms. Snyder, Trooper Davis observed that her eyes were bloodshot and watery and that there was a strong odor of alcohol on her breath. When Trooper Davis inquired about Snyder’s alcohol intake, she admitted to having drunk multiple beers.
When Trooper Davis administered the Horizontal Gaze Nystagmus (“HGN”) standardized field sobriety test to Snyder, he observed six out of six clues (i.e., lack of smooth pursuit; distinct and sustained nystagmus at maximum deviation; and onset of nystagmus before 45 degrees). Snyder provided a portable breath test sample, which was positive for alcohol. Trooper Davis did not ask Snyder to perform the walk-and-turn or one-leg stand field sobriety tests because she was wearing high-heeled shoes.
Trooper Davis placed Snyder under arrest for DUI and read the Implied Consent Notice for Suspects Ages 21 or Over, asking whether Snyder would submit to a state administered chemical test of her blood. Snyder agreed to provide a blood sample. Trooper Davis, a certified phlebotomist, drew Snyder’s blood after transporting her to the Villa Rica Police Department. He then sealed and packaged the blood to send it to the GBI Crime Lab for analysis.

Georgia law specifies who may draw blood when a law enforcement officer requests a blood sample under certain circumstances:

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. No physician, registered nurse, or other qualified person or employer thereof shall incur any civil or criminal liability as a result of the medically proper obtaining of such blood specimens when requested in writing by a law enforcement officer[.]

(O.C.G.A. § 40-6-392 (a) (2)) (emphasis added).

Snyder filed a motion to suppress in the trial court, arguing “that the results of a blood draw for a state-administered chemical test should be suppressed because the blood draw was performed by the arresting officer, in violation of OCGA § 40-6-392.” According to Snyder, Trooper Davis “could not conduct the blood draw because an arresting officer is not explicitly enumerated [in O.C.G.A. § 40-6-392 (a) (2)] and the phrase ‘other qualified person’ does not apply to the arresting officer.”

The Court of Appeals rejected Snyder’s contention that O.C.G.A. § 40-6-392 (a) (2) prohibited Trooper Davis from performing the blood draw on Snyder. The Court reasoned:

[T]he plain language of OCGA § 40-6-392 (a) (2) reveals nothing suggesting that an arresting officer is prohibited from serving as an “other qualified person” to withdraw blood. (“[I]f the statutory text is ‘clear and unambiguous,’ we attribute to the statute its plain meaning, and our search for statutory meaning is at an end.”) In other words, the legislature has plainly stated that in addition to a physician, registered nurse, laboratory technician, and an emergency medical technician, an “other qualified person” may conduct the blood draw. Snyder acknowledges that the trooper was a certified phlebotomist. (citation omitted).

Further, the Court of Appeals was not persuaded by Snyder’s argument “that we must view the trooper only in his role as an officer and that he is incapable of holding multiple roles simultaneously.” Rather, the Court explained, “[T]he trooper can act as both a law enforcement officer and also a phlebotomist under these circumstances. Accordingly, the trooper was permitted to conduct the blood draw under the statute[.]”

Although Snyder contended that a trooper’s law enforcement duties “may be at odds with his or her duties as a medical professional[,]” the Court pointed out that “[T]he policy concerns raised by Snyder on appeal are solely the province of the General Assembly, not this Court.” That is: the legislature enacts statutes and the court interprets them.

The Court of Appeals also considered whether Trooper Davis’s performing the blood draw was “otherwise impermissible.” The Court was not swayed by Snyder’s suggestion “that the trooper’s performance of the blood draw may constitute an unreasonable search and seizure.” The Court wrote:

To the extent that Snyder suggests that the trooper’s blood draw raises some constitutional issue . . . the Supreme Court of Georgia has already determined that this case does not invoke its constitutional question jurisdiction. After the trial court denied her motion to suppress, Snyder filed an application for interlocutory appeal in this Court . . . We transferred the application to the Supreme Court of Georgia on the basis that the application appeared to involve a novel question regarding the constitutionality of OCGA § 40-6-392 (a) . . . The Supreme Court returned the application to this Court[.]

Regarding its decision to return Snyder’s application for interlocutory appeal to the Court of Appeals, the Georgia Supreme Court explained: “[I]t is well settled that to fall within this Court’s appellate jurisdiction, a constitutional question must either involve the construction of some provision of the Constitution of this State or of the United States, or attack as unconstitutional some law of this State or of the United States.” The Supreme Court also cited precedent that “this Court ‘will not rule on a constitutional question unless it clearly appears in the record that the trial court distinctly ruled on the point.’”

The Supreme Court explained that Snyder’s arguments regarding her motion to suppress “neither challenged the constitutionality of any statute, nor required any novel interpretation or construction of any federal or state constitutional provision[.]” Further, the Supreme Court reasoned, “[T]he trial court made no such rulings in its order.”

Rather, “[T]he trial court merely applied the principles of statutory construction and looked to persuasive case law to hold that a law enforcement phlebotomist qualifies as an ‘other qualified person’ under § 40-6-392 (a) (2).” For these reasons, the Supreme Court determined, Snyder’s interlocutory application “[did] not invoke this Court’s constitutional question jurisdiction,” and, accordingly, should be returned to the Court of Appeals. Snyder v. State, No. A24A1554, 2025 WL 558075 (Ga. Ct. App., February 20, 2025).

REMAND TO TRIAL COURT TO DETERMINE WHETHER DUI DEFENDANT GAVE ACTUAL CONSENT TO BLOOD TEST

On February 26, 2022, a Georgia DUI task force officer saw a vehicle driven by Canales commit multiple traffic violations: “The officer observed Canales fail to maintain his lane and noticed that the driver’s side tires crossed the double yellow lines. After Canales made a left turn, the officer observed Canales fail to maintain his lane two additional times.”

After pulling over Canales’s vehicle, the officer interacted with Canales, who manifested signs of alcohol use, including “bloodshot, red, glassy, [and] watery eyes[.]” The officer also detected “a strong odor of alcohol emanating from inside the vehicle and Canales’s person.” At first, the officer spoke with Canales in English, but the two men also communicated in Spanish, which was the first language for both.

Canales acknowledged “that he had just left a restaurant where he had been drinking alcohol.” He also consented to providing a portable breath test sample, which was positive for alcohol. At the officer’s request, Canales then exited his vehicle, during which time the officer once again smelled a strong odor of alcohol emanating from Canales.

Canales initially agreed to submit to field sobriety tests. The officer then administered the horizontal gaze nystagmus (“HGN”) test, on which Canales was positive for all six clues. However, when the officer asked whether Canales consented to continuing with the other field sobriety tests, Canales “declined
due to the cold weather.” The officer then placed Canales under arrest for DUI.

The officer read the Implied Consent Notice to Canales in English, requesting a state administered chemical test of his blood. In response, “Canales indicated that he understood and consented to a blood test.” The officer then transported Canales to the police station, where he and Canales talked while the officer completed paperwork. During this conversation, Canales “complained of chest pain and difficulty breathing[,]” and the officer called the fire department for assistance. At some point before the fireman’s arrival, “Canales threw himself on the floor.”

Once the fireman got to the police station, he checked Canales’s blood pressure and vital signs. After determining that Canales was okay, he “releas[ed] Canales back to the officer.” Subsequently, a phlebotomist arrived and drew Canales’s blood. Canales’s blood test results showed that his blood alcohol level was 0.134. (Note: The officer later testified “that he did not recall relating back the blood test to the implied consent notice when the phlebotomist arrived to take Canales’s blood.” When asked if he explained to Canales “whether the blood draw was for investigative purposes or medical diagnostic purposes, the officer responded negatively.”)

Canales was charged with DUI per se, DUI less safe, and failure to maintain lane. He filed a motion to suppress his blood test results, arguing “that he should have been read the implied consent notice in Spanish, not English and that he did not voluntarily consent to a blood test.” In support of its decision to deny Canales’s motion, the trial court wrote:

[T]he Officer and [Canales] understood each other, as Spanish is the first language for them both, and that [Canales’s] nervousness was not related to any communication issues. [Canales] had a clear understanding of the Implied Consent Warning and did not ask for clarification. Considering [Canales’s] age, education, intelligence, and business ownership, the [c]ourt finds that [Canales] freely and voluntarily gave actual consent to the blood test.

Canales opted for a bench trial (a trial before a judge, with no jury), and was convicted on both DUI charges and the failure to maintain lane charge. He appealed to the Georgia Court of Appeals, arguing “that the trial court erred by denying his pretrial motion to suppress.”

In 2015, the Georgia Supreme court held that “[w]hether a warrantless blood test of a drunk-driving suspect is reasonable must be determined case by case based on the totality of the circumstances.” In its analysis of the trial court’s ruling on Canales’s motion to suppress, the Georgia Court of Appeals noted that “the trial court only addressed the consent Canales gave at the time he was read the implied consent notice.” (emphasis added). However, the Court of Appeals wrote, “The trial court [did] not mention, address, or analyze the circumstances surrounding Canales’s blood draw and whether he gave actual consent to the blood draw after suffering the panic attack and receiving medical care.” (emphasis added).

Therefore, the Court of Appeals remanded Canales’s case to the trial court “to address whether Canales gave actual consent to the procuring and testing of his blood, which requires a determination of the voluntariness of the consent under the totality of the circumstances including the circumstances surrounding Canales’s blood draw.”

Additionally, since it might “be relevant on remand,” the Court of Appeals also analyzed “the sufficiency of the evidence of Canales’s DUI less safe conviction.” Georgia law states that “[a] person shall not drive or be in actual physical control of any moving vehicle while under the influence of alcohol to the extent that it is less safe for the person to drive.” (O.C.G.A. § 40-6-391 (a) (1)). The Court of Appeals reasoned:

The evidence of Canales’s DUI less safe conviction was sufficient without the introduction of his blood test. At trial, the proffered evidence showed that the officer observed Canales fail to maintain his lane three time[s] and that his vehicle crossed over the double yellow lines. Upon contact with Canales, the officer noted that Canales had bloodshot, red, watery eyes, conditions of someone under the influence of alcohol. The officer also smelled a strong odor of alcohol emanating from the vehicle and Canales’s person. Canales admitted to the officer that he had been drinking alcohol. When Canales exited the vehicle, the officer again noticed the smell of alcohol coming from his mouth. After exiting the vehicle, Canales failed the HGN test.

For these reasons, the Court of Appeals concluded, “[O]n remand should the trial court determine that the blood test was improperly admitted, it can reverse his conviction for DUI per se, sustain Canales’s conviction for DUI less safe, and re-sentence him for DUI less safe.” Canales v. State, No. A24A1568, 2025 WL 500983 (Ga. Ct. App., Feb. 14, 2025).