Forced Blood Draws in Georgia
The most disturbing development in DUI law enforcement throughout the United States and Georgia is the advent of forced blood testing. It is quite frankly a despicable fascist tactic used by an out of control government. The second most disturbing development are judges that refuse to protect the rights of the accused because enforcing those rights can be politically unpopular.
In Georgia, you have a right to refuse a breath test, a blood test, or a urine test. This right is protected by case law, the Georgia Constitution, and the 4th Amendment to the United State Constitution. Yet, our judges have become more concerned with being re-elected than their duty to protect our constitutional rights.
The general public is fixated on cracking down on Georgia DUI Drivers. When a judge runs for another term, he/she will not dare be accused of being easy on those accused of DUI in Georgia. So, it's easy to simply ignore their duty to protect the rights of people accused of DUI because those people have no political influence. This is exasperated by the fact that judges in Georgia run for re-election every four years.
The result is as follows:
- A person is suspected of DUI in Georgia
- They either perform "voluntary" field sobriety tests or not.
- The are arrested because the officer determines that in his opinion you are a less safe driver due to the consumption of alcohol or drugs.
- The officer reads your implied consent warning, outlying what happens if you refuse testing. The consequences include loss of your drivers license and the use of the refusal against you at trial.
- The arrested driver still decides to refuse because he decides he does not want to provide a sample of his breath or body fluids. (for whatever reason)
- As a result, the driver will lose his license for 12 months and have the refusal used against him.
- However, the arrest is not over. The arresting officer goes to a magistrate and secures a warrant to take the driver's blood anyway.
- So, the drivers gets the punishment for the refusal, yet still is forced to give a sample!
So, lets get this straight. A driver in Georgia will be strapped down and have blood forced from them. This will be done completely against their will. If they resist, they will be charged with obstruction, and they will still be strapped down and forced.
- But wait, they are afraid of needles; too bad.
- But wait, they they are a hemophilia and the blood draw would be dangerous; too bad.
- But wait, they are being treated for a medical condition that would make a blood draw dangerous; too bad.
- But wait, they change their mind and consent to testing; too bad its still a refusal anyway.
- But wait, the driver believes in the 4th Amendment to the Constitution and feels they have a right to privacy; too bad - the government now has your blood or urine to do anything they want to do with it.
- But wait, the driver is afraid, upset, scared, and paralyzed by the arrest experience and just doesn't know what to do, too bad.
This is disgusting. This is the ends justifying the means. The State of Georgia will certainly get more convictions. Congratulations Georgia Judges ( including our appellate judges ). You have turned yourselves into State Enforcers, instead of protectors of the rights of the citizens of Georgia. Congratulations, your intellectual dishonestly will more likely result in re-election. Congratulations, your have bowed to public opinion instead of following your oath to defend the rights of people accused of crimes in Georgia.
There is no constitutional justification to strap a driver down on a gurney and to take that person's blood against their will. It is as simple as that. Georgia Judges, have you thought about where this can go? Strapping people down charged with misdemeanor offenses so the State can increase their conviction rate. Really? If a person cannot be secure in their own body, then you have given ownership of our bodies to the State of Georgia. Georgia Judges, you then turn over your own bodies to State examination upon suspicion of a crime. FOR MISDEMEANOR OFFENSES??
Do we own our own bodies or does the State. It's a simple question with far-reaching implications. If we are wards of the State, the State of Georgia can tell us what to consume, where to go, when to exercise, how much to eat, how much we should sleep, and in what economic activities we can participate. In that situation, our judges would then be the enforcers of government mandates. Is that the State of Georgia we want??
Or, do we own our bodies, papers, and other personal property? In that situation, Georgia Judges are tasked to protect our rights against an over-reaching government. The trend I see today is where Georgia judges act as a second state actor to enforce the law, like a second prosecutor in the courtroom. This week alone, I witnessed a judge tell the audience that if you fail to plead guilty by the plea date that your sentence will most likely be more severe after a trial. So, the message was to submit to the State or he would increase your punishment. I wanted to ask him to pull up a chair next to the prosecutor.
Yet, I am certain the citizens of his county, at first glace, would support his actions. He cracked down on DUI drivers in Georgia. Yet, he did not do his job. He acted as a second prosecutor, thereby increasing the intimidation of 75 people who were supposed to be presumed innocent until proven guilty. He also exposed the hidden truth that most judges do increase punishment after trial. The fact he was willing to openly say it speaks volumes.
Were some guilty? Sure. Were most? Probably. Did any person deserve the intimidation of a judge announcing to the crowd that they would be punished more by exercising their right to trial in Georgia? NO!! And what of that judge? He violated his oath of office by per-judging punishments instead of exercising discretion and judging cases individually. There are several appellate cases that have reversed judges who have a set sentencing pattern. Nevertheless, he announced in open court a sentencing pattern of increased penalties after trial.
The message was clear to anyone in the audience. If you exercise your right to trial, you will be punished. The message was also clear that if you truly were falsely accused, this judge was happy to intimidate you into a plea of guilty by placing the fear of increased punishment over you. I am certain beyond all doubt that innocent people have plead guilty in his courtroom as a result.
Does anyone remember the Duke Lacrosse player being falsely accused? They were presumed innocent and were actually innocent. Yet, everyone at first glace thought they were guilty. The general public was outraged at the young men and the rape of the "victim." The were persecuted in the press and "convicted" in the press. Yet, there was no rape. It was fortunate that they had those "pesky rights" such as a presumption of innocence. The fact that most people charged with a crime are guilty is no excuse for taking away the rights of the accused. Those rights protect everyone.
And what of me? I am not blameless here. Have I outed the judge? No I have not. I practice occasionally in that courtroom and am also afraid of repercussions. The fear is not personal. If I am respectful in court, he can do nothing to me other than inconvenience me. The fear is for my clients. I cannot risk what would happen to my clients if I outed the judge. The good news is I practice in 100s of courts and more than 60 counties throughout Georgia. This event could have happened anywhere. I have chosen to remain silent, but I have to admit that I feel some shame about my silence.
I mentioned in an earlier post that sometimes I will write the straight news and the straight law. The Georgia DUI Information Blog and the Georgia DUI Information Website are both designed to provide information to it's readers. Tonight, it was simply my opinions. I welcome yours.
6-29-13 Update on Forced Blood testing in Georgia.
As reported on the Fox 5 news, the practice of forcing people to submit to testing is exactly as I described 7 months ago. The actual horror of seeing it is far worse than I even thought. My message to our judges in this state is very simple. Any law school graduate that sees a person put in a head-lock and strapped down and thinks that this passes constitutional muster should be removed as a judge. Any law school graduate that thinks that this should be allowed under the Forth Amendment and the Georgia Constitution should have flunked out of law school.
This disturbing new story is an example of an out of control government and a judiciary unwilling to do their jobs because they fear loosing them. Shame on any judge that allows this in their courtroom.