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Judge Harold R. Banke.
D.U.I. Carroll State Court. Before Judge Sullivan.
After Mark Moses performed poorly on field sobriety tests, Officer Campbell placed him under arrest for DUI and read him the Implied Consent Notice set forth in OCGA 40-5-67.1 (b). Officer Campbell requested that he submit to a breath test, to which Moses consented. Dissatisfied with the results of that test, Officer Campbell re-read Moses the "Implied Consent Notice," this time asking for a blood test. Again Moses consented, and the test was taken. At no point was Moses warned of his rights pursuant to Miranda v. Arizona, 384 U. S. 436 (86 SC 1602, 16 LE2d 694) (1966).
Moses moved to suppress the results of the blood test, arguing State v. Warmack, 230 Ga. App. 157 (495 SE2d 632) (1998), required the giving of Miranda warnings before requesting additional chemical tests. Granting the motion, the court held that a subsequent amendment to OCGA 40-5-67.1 did not change this holding of Warmack. The State appeals. Held:
No Miranda warnings are constitutionally required prior to requesting a blood-alcohol test under the implied consent statute. Allen v. State, 254 Ga. 433, 434 (3) (330 SE2d 588) (1985); see State v. Mack, 207 Ga. App. 287 (2) (427 SE2d 615) (1993). Because the right to refuse a blood test is granted by statute, the legislature may limit the nature of that right. Allen, supra, 254 Ga. at 434 (1) (b).
Effective March 27, 1998, the legislature amended OCGA 40-5-67.1 (a) to provide that "the requesting law enforcement officer shall designate which test or tests shall be administered initially and may subsequently require a test or tests of any substances not initially tested." Ga. L. 1998, p. 210, 2. Moses' incident took place on May 19, 1998. Because officers are now authorized to require subsequent tests, the statutory underpinnings of Warmack's conclusion have fundamentally changed. But its rationale is extant. Just as Miranda warnings were not necessary before requesting the initial test which an officer could require before the amendment, so Miranda warnings are not necessary before requesting additional tests, now that the amendment authorizes an officer to require them.
The court erred in granting the motion to suppress.
Allen M. Trapp, Jr., for appellee.
S. James Tuggle, Solicitor, for appellant.
Thursday May 21 02:58 EDT

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