AJC Watchdog: First Alert

Keeping watch on those who hold the public trust and money

Georgia judges: Drunk driving suspects won't get licenses back

Law enforcement was thrown for a loop in March, when the Georgia Supreme Court ruled that a state law on testing suspected drunken drivers was unconstitutional. The law says that motorists who refuse to be tested for alcohol or drugs lose their driver's license for a year. But the justices said that law runs afoul of the Constitution's guarantee against unreasonable search and seizures. The suspect who submits to the required test has not necessarily freely consented to waive the constitutional requirement for a warrant, they wrote in their decision on a Gwinnett County case.

That set off a scramble, with some legal experts predicting that state law would have to be re-written and cops would have to obtain warrants for such tests or the results could be excluded in court.

But in recent rulings, Georgia administrative law judges have said the Supreme Court ruling does not apply when it comes to decisions to suspend a driver's license. Unlike in criminal court cases, the state does not have to prove that a DUI suspect's consent was freely and voluntarily given in order for results of a breath test to be admissible in administrative license suspension proceedings, the judges decided.

In separate cases, two men arrested for drunk driving cited the Supreme Court case in arguing that evidence from their DUI tests should be excluded from what's called administrative license suspension proceedings.

The administrative law judges didn't buy it.

"The exclusionary rule is not constitutionally mandated, but rather is "a judicially created means of deterring illegal searches and seizures,"  write Administrative Law Judge M. Patrick Woodard in an April 29 decision.

That rule imposes a "costly toll" upon truth-seeking and law enforcement objectives, he wrote, so it doesn't apply to administrative cases such as driver's license suspensions. Using the rule in such proceedings "would exact a considerable social cost by interfering with the state's means of combating drunk driving," Woodard wrote.

In the second case, decided May 7, Administrative Law Judge Michael Malihi cited the "enormity of the social costs associated with applying the exclusionary rule" in cases of administrative license suspensions.

There will be more to come on the issue. The Supreme Court ruling sent the Gwinnett case back to state court to address whether the suspect in that case gave actual consent to a DUI test. The state law is predicated on implied consent - the idea that by driving on public roads, motorists have agreed to be tested for drugs or alcohol if a cop believes they may be intoxicated.

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About the Author

Lois Norder is Senior Editor for Investigations in the newsroom at The Atlanta Journal-Constitution.