Garrett v. Department of Public Safety , 237 Ga. 413 ( 1976 )

Nichols, Chief Justice.

The appeal in this case is from an order revoking appellant’s driver’s license for refusing to submit to a chemical test to determine the extent of intoxication. Appellant contends that the implied consent law is unconstitutional, that the evidence is insufficient and that he was not informed as to his right to have a chemical test made by someone of his own choosing.

1. The appellant contends in the first enumeration of error that Code Ann. §§ 68A-902.1 and 68B-306 (Ga. L. 1974, pp. 633, 691; Ga. L. 1975, pp. 1008, 1028) are unconstitutional in violation of the Fourth, Fifth, Sixth and Ninth Amendments to the United States Constitution and the corresponding sections of the Georgia Constitution.

The attacks made by the appellant have been unsuccessfully made on other statutes providing for the revocation of driving privileges. See Johnson v. State, 236 Ga. 370 (223 SE2d 808) (1976); Dennis v. State, 226 Ga. 341 (175 SE2d 17) (1970); Davis v. Pope, 128 Ga. App. 791 (197 SE2d 861) (1973); Schmerber v. California, 384 U. S. 757 (86 SC 1826, 16 LE2d 908) (1966). There is no merit in this enumeration of error.

2. It is contended that the trial court erred in affirming the revocation of appellant’s license because he was not informed of his right to have a chemical test made by a person of his own choosing.

The Court of Appeals in Nelson v. State, 135 Ga. App. 212, 213 (217 SE2d 450) (1975), a case involving Code Ann. § 68A-902.1, supra, held:"... where the statute itself provides that a person 'shall’ be advised of his rights under the law, the legislature obviously meant to abrogate this presumption and replace it with the requirement that notice be given. Thus, it was necessary, under this statute, for the arresting officer to notify the appellant of his right to have an additional test made before the appellant could be burdened with the responsibility of having to request it.

"It is also logical that the legislature intended that this right be made known to the defendant at the time of his arrest in order that he may, if he so chooses, challenge the accuracy of the chemical test administered by the state at the only time such a challenge would be meaningful.”

Code Ann. § 68B-306 provides in part: "Therefore any person who operates a motor vehicle upon the highways of this State shall be deemed to have given consent, subject to the provisions of section 68A-902.1, to a chemical test or tests of his blood, breath, or urine or other bodily substances, for the purpose of determining the alcoholic or drug content of his blood if arrested for any offense arising out of acts alleged to have been committed while the person was driving or in actual physical control of a motor vehicle while under the influence of alcohol or any drug. The test or tests shall be administered at the request of a law enforcement officer having reasonable grounds to believe that the person has been driving or was in actual physical control of a motor vehicle upon the highways of this State while under the influence of alcohol or any drug. Subject to the provisions of section 68A-902.1, the requesting law enforcement officer shall designate which of the aforesaid tests shall be administered. . .

"Any person who is dead, unconscious, or who is otherwise in a condition rendering him incapable of refusal, shall be deemed not to have withdrawn the consent provided by paragraph (a) of this section and the test or tests may be administered, subject to the provisions of section 68A-902.1.” (Emphasis supplied.) Code Ann. § 68A-902.1(a)(3) provides: "The person tested may have a physician, or a qualified technician, chemist, registered nurse, or other qualified person of his own choosing administer a chemical test or tests in addition to any administered at the direction of a law enforcement officer. The justifiable failure or inability to obtain an additional test by a person shall not preclude the admission of evidence relating to the test or tests taken at the direction of a law enforcement officer.”

Submitted June 7, 1976 Decided September 7, 1976. Parker & O’Callaghan, James I. Parker, for appellant. ArthurK. Bolton, Attorney General, JohnB. Ballard, Jr., Assistant Attorney General, for appellee.

The question is thus presented as to whether a person is justified in refusing to submit to a chemical test where he is not informed of his right to have an independent test made by someone of his own choosing. In subsection (a) (4) of Code Ann. § 68A-902.1, the legislature used the mandatory language: "The arresting officer at the time of the arrest shall advise the person arrested of his rights . . .” (Emphasis supplied.) This cannot be interpreted to mean sometime in the future. One cannot make an intelligent choice to submit to a chemical test without the knowledge of the right to have an independent test made in order to contest the validity of the state’s test. The language of the statute makes it clear that a person must be advised of his right to have an additional test administered by a qualified person of his own choice in addition to the one administered by the arresting officer. As held in Nelson, supra, the failure to so inform invalidates the result of any test and also justifies the refusal to submit to a test.

Judgment reversed.

All the Justices concur, except Gunter, Hall and Hill, JJ., who dissent.