'IMPLIED CONSENT' RULING TROUBLES LOCAL PROSECUTORS

Investigation into fatal wreck collides with recent court ruling on
'implied consent'

Authorities say a recent court ruling is hindering prosecution in the
head-on collision that killed a Walker County couple and their
9-year-old child on April 2.

Under the ruling, officers must have clear evidence -- "probable
cause" -- of drinking or drug use to draw blood legally.

Without this, officers must get the driver's consent. And that's a
problem if the driver is unconscious, such as in the recent fatal
wreck, or refuses to give consent.

"I can see a lot of problems arising out of serious automobile
accidents with fatalities or injuries," Lookout Mountain Judicial
Circuit District Attorney Herbert "Buzz" Franklin said about the court
ruling. "Under implied consent, it has been pretty much taken for
granted that we were going to get blood or urine samples to determine
if the drivers were under the influence of drugs, alcohol or other
intoxicants."

But in October the Georgia Supreme Court said the state's "implied
consent" law, which allowed officers to arbitrarily take blood or
urine samples from drivers involved in severe accidents, was unjust
because it bypassed Fourth Amendment rights.

The Fourth Amendment protects citizens and their property from
"unreasonable searches and seizures." The amendment requires
authorities to have probable cause when receiving a search warrant.

Based on the October ruling, officers are having a difficult time
securing court-admissible blood tests from the scene of the April 2
traffic accident in Cooper Heights, which claimed the lives of Rock,
his wife Katherine and son Morgan Thomas, authorities said.

Franklin said the ruling will make it more difficult to prosecute some
cases.

"It may be the difference between being charged with a crime and not
being charged at all," Franklin said. "Guilty people are going to
certainly benefit from this ruling by the court."

Officers must search for relevant evidence at an accident scene before
legally drawing any blood or urine to be entered into evidence,
Georgia State Patrol Specialized Collision Reconstruction Team member
Heath Stewart said.

"Now, the officer is going to have to come on the scene, gather as
much physical evidence as he can and evidence of the cars so he can
get a feel for who was at fault for the accident," Franklin said.
"Basically what he is going to have to do is build a good record and
find some sort of probable cause to get a search warrant (to draw blood).

"If they're unconscious or refuse to give consent, you are going to
have to sufficient probable cause to get a search warrant," Franklin
said. "That is why it is going to be even more important to quickly
assess the physical evidence at the scene of the crash."

Driving under the influence of alcohol or drugs is often a factor in
serious traffic accidents, and if tests are not taken within three
hours of an incident, the results could be useless, Stewart said.
Blood-alcohol levels decrease rapidly.

Establishing Probable Cause

Many people view a driver's license as a privilege and feel the state
should have the authority to govern its use.

"That was the theory that the law was able to operate under for so
many years," Franklin said. "Having a driver's license is still a
privilege, but what you are doing (by taking blood samples) is
gathering evidence for a criminal case."

Reasonable suspicion is no longer a sufficient reason to take
biological samples, Stewart said. An officer must build probable
cause. In other words, just saying "he looked drunk to me" is not
enough reason to pursue testing.

Stewart offered an example to illustrate the difference between
reasonable suspicion and probable cause.

If it's hot and someone walks through a high-crime neighborhood
wearing a trench coat, an officer has reasonable suspicion to stop him
and ask questions, Stewart said. If the officer finds the suspect is
concealing a gun or burglary tools in his jacket, he has probable
cause to make an arrest.

Despite the state court's ruling, officers may still ask for a
conscious driver's consent to drug and alcohol tests, Franklin said.
If the driver declines, the officer must still provide probable cause
and seek a search warrant.

Rising Fawn Residents Deaths Investigated

The court's ruling reared its head earlier this month while officers
investigated the fatal two-car accident in Cooper Heights, Stewart
said.

The investigation so far indicates that 23-year-old Jason Potter's
S-10 crossed the centerline into the path of the Thomases oncoming
Nissan Quest minivan, Stewart said. Potter lives in
Chickamauga.

Rock and Katherine Thomas died on impact while their 9-year-old son,
Morgan, died the following day at Erlanger Medical Center in
Chattanooga. The couple's two older children, Logan Thomas and David
McKinsey, were treated and released from the hospital.

Stewart said blood was drawn from Potter, who was unconscious, at
Erlanger, where he was transported for treatment. The blood has been
sent to a state crime lab for testing for alcohol or drugs.

But the test results may remain out of authorities' reach because
there was not clear evidence of alcohol or drug use on the accident
scene. And since Potter was unconscious, he could not give consent.

Potter remains hospitalized at Erlanger in intermediate
care.

Although all citizens are innocent until proven guilty, the Supreme
Court's ruling prevents officers from knowing, without a shadow of
doubt, the truth in some situations, Franklin said.

"I can't really argue that the law doesn't make sense," Franklin said.
"They're saying we shouldn't be able to bypass the Fourth Amendment
just by someone getting a driver's license. It's going to make it
tougher on us, but I can see the (court's) reasoning."

Walker County Sheriff Steve Wilson said officers arrested Potter in
2002. He was charged with driving under the influence, driving on the
wrong side of road, driving too fast for conditions, open container
and driving with an improper license.

He has also been arrested within the past two years for simple assault
and simple battery under the Family Violence Act, Wilson said.