The Drug Whisperers
There is a hot controversy going on in Cobb County these days. It seems some Drug Recognition Experts (DRE) with Cobb County Police Department have developed Jedi skills. They claim to be able to sense when someone is driving under the influence of drugs, despite the fact that the accused passes all their Field Sobriety Tests (FST). They are now known as "Drug Whisperers", after several people who passed their FST, were arrested for DUI of Drugs anyway and compelled to have blood drawn under Georgia's Implied Consent Law.
After the tests from the GBI Crime Lab came back negative in some of the cases, these "Whisperers" still maintain that these citizens were DUI. One of the Drug Whisperers went so far as to proclaim in open court, after hearing the results of the GBI tests, that he stood by his assessment and even claimed that he could tell that the defendant was "high" in court. Incredibly, their superiors back them.
The resultant media frenzy and pressure from just TWO activists, Stephen George and Amy Barnes, prompted the Cobb County Police Chief to issue the following statement in a July 3rd, 2017 edition of the Marietta Daily Journal:
"now, if a driver is pulled over for probable cause and suspected of 'being high as a kite', they will be taken to a hospital or police precinct where a nurse or the like will take a blood sample. The subject, rather than undergo immediate arrest, will then be released provided they have alternative means of transportation. Only once the results from the GBI crime lab are sent to the police department will the Cobb Solicitor's Office determine whether prosecution is needed."
The "rather than undergo immediate arrest" portion of the Chief's statement confuses me, as "being taken to a hospital or police precinct where a nurse or the like will take a blood sample" sounds like an ARREST to me.
Meriam-Webster Dictionary defines arrest as "seize, capture; specifically: to take or keep in custody by authority of law. Police arrested the suspect".
In most legal dictionaries Arrest is defined as "A seizure or forcible restraint; an exercise of power to deprive a person of his or her liberty; the taking or keeping of a person in custody by legal authority, especially in response to a criminal charge".
Georgia Law defines what an arrest is in OCGA 17-4-1. "Actions constituting an arrest: An actual touching of a person with a hand is not essential to constitute a valid arrest. If the person voluntarily submits to being considered under arrest or yields on condition of being allowed his freedom of locomotion, under the discretion of the officer, the arrest is complete".
So I have to wonder how citizens will be advised that they are being "taken" but that they are not "under arrest". How will they be convinced to voluntarily give up a 4th Amendment Right to be secure in their persons and wind up submitting to having a needle stuck in their arm? I know that for me, no matter what the coercion may be, I'm going to have to pull a Nancy Reagan and "Just Say No"!! If they want my blood, they will have to arrest me, then advise me of Georgia's Implied Consent Law, and only THEN will I submit.
I will not take their FST. I will not blow in their handheld breathalyzer. I will not let them shine a light in my eyes. I will not say my ABCs backward. I will not dance an Irish Jig or perform any other type of roadside test, simply because in Georgia I am NOT REQUIRED TO DO SO. I will politely refuse. If they ask why (or any other question outside asking for my name) I will simply tell them, "My attorney has advised me not to answer questions asked by the police". I will put them in a position wherein if they think they have enough probable cause they will have to arrest me. I will not help them build a case against me by playing their silly little roadside games.
What My Attorney Friend Has To Say
I've been discussing this issue with former/retired/active cops and a few attorneys over the last several days. They ALL agree that, as stated, this policy constitutes an arrest. One of the active cops is a DRE himself, and even he agrees it's an arrest.
Chris Cahill, a defense attorney in Cobb County, went so far as to write the following and it is used here with his permission:
"Cobb's new Police Chief's "win-win" approach to overaggressive DUI police is an absolute loss for Freedom. The July 3, 2017 article "Keeping the Roads Safe Without Wrongful Arrests" in the Marietta Daily Journal highlighted Cobb Police Chief Michael Register's new policy in reaction to "the Drug Whisperer" Tracy "TT" Carol having been found to regularly wrongfully arrest innocent people for driving while high. The Chief's brilliant solution to these wrongful arrests? Simply take everyone's blood, then arrest the guilty ones later!
Yes, the new policy of the Cobb County Police Chief would have anyone pulled over and suspected of being high taken to the hospital or precinct where a nurse "or the like" will shove a needle into the person's arm and draw blood for chemical testing. Only then, if the blood comes back dirty, will the person ever be cited for the offense. Meanwhile, the innocent people rounded up on any officer's mere suspicion will only have to suffer through the expense of having their cars towed. Only!!
This is all without the person ever giving consent or being officially "arrested" (according to the Chief). This is an outrageous violation of our civil rights, where the policy of the police allows ordinary citizens to be seized, searched, and their very bodies penetrated by needles in the hands of absolute strangers, all because of a mere suspicion, "because they looked funny". In practice, this policy cannot survive. Legally, ethically, morally - in the name of Freedom - the very idea of the policy is troubling.
If you're going to try to fix the problem of The Drug Whisperer, Chief Register, then please focus on educating your officers: just because someone doesn't look like you - and just because someone doesn't act like you - does not mean that the person is on drugs. YOU would have to be high as a kite to think otherwise".
Can It Stand?
Can the policy last for long? I don't think it can. It really seems a pointless policy, as I couldn't imagine anyone willingly submitting to having blood drawn just because an officer asks nicely and says, "You won't be under arrest". If you're not under arrest, you're free to go, right?
Know your rights, people. There is a multitude of information out there on what to do if you are pulled over by the police. Read a few of them. Formulate a plan. Be prepared.