Pubdate: Tue, 07 Oct 2003
Source: Savannah Morning News (GA)
Copyright: 2003 Savannah Morning News
Author: Walter C. Jones


ATLANTA -- A driver who tested positive for cocaine during a head-on 
collision will get a new trial after the Georgia Supreme Court threw out 
his conviction Monday because the law is flawed.

Carey Don Cooper had cocaine in his bloodstream on Aug. 11, 2000, when he 
swerved into the path of another car on the Atlanta Highway in Barrow 
County. Since the other driver suffered a broken arm, a trooper gave Cooper 
the choice between a routine blood test for drugs or loss of his license - 
even though neither driver appeared to be intoxicated.

Cooper agreed to the test and wound up convicted of a misdemeanor drug 
charge after it turned up positive. Then he appealed.

In the appeal, the court ruled the state's so-called "implied consent" law 
cannot require a driver to submit to a blood test for illegal drugs or 
alcohol unless a law-enforcement officer suspects intoxication. Until 
Monday's decision, police officers had been allowed to get the tests from 
any driver involved in an accident resulting in serious injuries.

Cooper's attorney predicted the ruling would affect many cases.

Yet, to some, the court was wrong.

"I don't think it violates anybody's rights," said Sam Patl, manager of 
Oxford Cleaners in Winder. "If I got nothing to hide, then I should not 
have a problem."

The law centered on the assumption that in exchange for the ability to 
drive, a person had to agree to drug and alcohol tests after serious 
wrecks. Normally, the constitution prohibits such tests without a warrant 
from a judge who has determined police had probable cause for suspecting a 
law was broken. But this law said that by driving a person has implied that 
he or she consents to the tests.

In Cooper's case, the seven justices concluded that driving is so important 
to most people that they will feel compelled to submit to a blood test - 
which courts consider an invasive "search." Since the Fourth Amendment of 
the U.S. Constitution outlaws unreasonable searches, the court threw out 
his conviction and ordered a new trial.

Cooper's attorney, William D. "Billy" Healan III, said that the decision 
reins in the police from abusing the rights of even people like his client 
who happened to have ingested illegal drugs.

"If you take drugs, you still have the constitutional right against 
unreasonable searches and seizures," said Healan, who practices in Winder.

Barrow County District Attorney Tim Madison didn't return a call seeking a 
comment, so it's not yet known when or if Cooper would be retried.

The decision will require police, deputies and troopers to change their 
procedures when investigating accidents with injuries, said Frank Rotondo, 
executive director the Georgia Association of Chiefs of Police.

"I would have to concur with the judge's decision on that. It sounds like 
it might be anti-law enforcement, but it's not," Rotondo said. "Sometimes 
when you get rulings like this, it results in stronger laws."
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