Checkpoint DUI-Drugs Arrest After Consenting to a Blood Draw

Attorney Answer

Giving the blood sample was not "wrong," and saying yes did not hand the State your case — under Georgia law your agreement to the implied consent notice does not by itself establish valid consent, and the legality of the checkpoint is a separate question your lawyer can put to the court.

The governing law. O.C.G.A. § 40-5-55 establishes Georgia's implied consent: a person who operates a motor vehicle in 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" to determine the presence of alcohol or any other drug, following a DUI arrest. The charge itself comes from O.C.G.A. § 40-6-391 — at (a)(2), driving under the influence of a drug to the extent it is less safe to drive, and at (a)(6), driving with any amount of marijuana or a controlled substance present in blood or urine. Which of those two you are charged under changes the case completely, because (a)(6) does not require proof that your driving was affected.

What the courts have held. In Kettle v. State, 339 Ga. App. 612, 794 S.E.2d 238 (2016), the Court of Appeals of Georgia addressed exactly your situation — a roadblock arrest and a blood test given after the implied consent notice. The court held that a driver's affirmative response to the notice does not by itself establish Fourth Amendment consent; the State must prove the consent was free and voluntary under the totality of the circumstances, considering the driver's age, education and intelligence, the length of the detention, and any threats, intimidation or coercion. Separately, a challenge to the checkpoint itself asks whether the roadblock programme had an appropriate primary purpose other than general crime control and whether the checkpoint was well identified. You should know the outcome: Kettle raised both challenges and lost both. The court found his consent voluntary and the roadblock valid, and affirmed the denial of suppression.

Bergstrom v. State, 347 Ga. App. 295, 819 S.E.2d 84 (2018) cuts the same direction. The Court of Appeals rejected both facial and as-applied constitutional attacks on Georgia's implied consent statute, holding the notice is not inherently coercive, imposes no criminal penalty for refusal, and need not comprehensively explain every consequence of refusing. That case involved a breath test rather than a blood draw, so it is background rather than a direct match — but it tells you the implied consent regime itself is not the vulnerable point.

So: these are real, live questions worth litigating, and they are also questions defendants frequently lose. Anyone who tells you the blood draw is automatically suppressible is selling something.

What you can do

1. Have counsel demand the roadblock documentation — the written authorisation, who approved it, the stated purpose, the screening criteria and how the checkpoint was marked. Under Kettle those are the facts that decide the checkpoint challenge. 2. Get the video, and get the implied consent notice exactly as it was read to you, including when it was read relative to the arrest. 3. Get the blood lab report, the chain of custody, and confirm whether you are charged under (a)(2) or (a)(6). 4. Write out your own account of the stop now, while you remember it — how long you were held, what you were told, what was said about what would happen if you refused. Those are the totality-of-the-circumstances facts in Kettle. 5. Locate the licence notice you were given and check its date (see below). 6. Stop second-guessing the consent decision and start preserving evidence. What is done is done; the record of how it was done is what matters now.

⏱ Time limits apply. Your licence case and your criminal case are two separate proceedings with different standards of proof, and they can come out differently on the same stop — winning one does not dispose of the other. The deadline to demand a hearing on the licence action runs from the notice you were handed at arrest, not from your court date, and it is short enough that it commonly expires while a person is still waiting to be called into criminal court. Find that notice, read the date on it, and give it to counsel today.