SECOND DIVISION
DOYLE, P. J.,
DAVIS and WHITAKER, JJ.
NOTICE: Motions for reconsideration must be
received no later than 4:30pm on the 10th day after the
decision was issued to be deemed timely filed.
https://www.gaappeals.gov/rules
August 7, 2026
In the Court of Appeals of Georgia
A26A1564. THE STATE v. KIM.
WHITAKER, Judge.
In this prosecution for driving under the influence of alcohol to the extent that
it is less safe to drive (“DUI-less safe”) and failure to maintain lane, the State appeals
from a trial court order granting defendant Je Lag Kim’s motion to suppress the
results of chemical testing of his breath. The State contends that the court erred in
ruling that the arresting officer misled Kim by requesting consent to both breath and
blood testing after reading the Georgia statutory implied consent notice. For the
reasons that follow, we agree and reverse.
“When a defendant moves to suppress evidence based on an illegal search, the
state must bear the burden of proving that the search was lawful.” Leon-Velazquez v. State, 269 Ga. App. 760, 761(1) (605 SE2d 400) (2004). Accord State v. de la Paz, 370
Ga. App. 853, 854 (899 SE2d 447) (2024). See also OCGA § 17-5-30(b). On appeal
from a decision on a motion to suppress, where, as here, the relevant facts are
undisputed, we review the trial court’s legal conclusions de novo. State v. Jacobs, 342
Ga. App. 476, 477 (804 SE2d 132) (2017). Accord Johnson v. State, 297 Ga. App. 847,
847 (678 SE2d 539) (2009).
The record shows that, around midnight on March 3, 2023, a police officer
stopped a vehicle being driven by Kim after he failed to stay in his lane multiple times
in short succession. As the officer approached the vehicle — in which Kim was the
only occupant — he detected “a strong odor of an alcoholic beverage” coming from
its interior and noticed that Kim’s eyes were “bloodshot and watery.” When asked
how much he had had to drink that night, Kim responded, “Two beers.”
While Kim agreed to submit to field sobriety testing, the officer ended the
testing after, according to the officer, Kim was “unwilling or unable” to perform one
of the tests. A portable breath test, however, indicated the presence of alcohol. The
officer arrested Kim and, after determining that he was over the age of 21, read him
the applicable Georgia implied-consent notice. At the end of the notice, the officer
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asked Kim, “Will you submit to the state administered chemical tests of your breath
and blood?” After a brief pause, Kim responded, “Yes,” without elaboration. The
officer later testified that he did not believe that Kim had any difficulty understanding
him. Chemical testing of Kim’s breath revealed a blood-alcohol concentration of more
than 0.08 grams.
The State thereafter filed an accusation charging Kim with one count each of
DUI-less safe and failure to maintain lane. Kim moved to suppress the results of his
breath test, arguing that it resulted from an “unlawful administration of the Georgia
implied-consent warning,” and thus, his consent to testing “was neither knowing nor
voluntary.” In particular, Kim contended that, because the officer requested consent
for both breath and blood tests after giving the notice, he “could not meaningfully
exercise his constitutional right to refuse a breath test which carries no adverse
evidentiary consequence while consenting to a blood draw.” Thus, Kim asserted, “the
officer effectively deprived [him] of the opportunity to choose which test, if any, he
would take.”
Following an evidentiary hearing, the trial court granted Kim’s motion to
suppress, holding that the officer’s “decision to simultaneously ask for both a breath
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and a blood test was potentially confusing to [Kim] in a meaningful way” due to the
different evidentiary consequences for refusing to submit to each. The court also
concluded that the General Assembly intended for law enforcement “to request one
test at a time,” reasoning that the statutory implied-consent notice “specifically
directs law enforcement to designate the chemical test — not test(s) — to which the
driver is being asked to submit.” The court suggested that “[t]he better practice”
would be for an officer to read the notice once, “ask for either blood or breath, and
then proceed with a second reading” if “the officer deemed it necessary to request the
other kind of test.” The court ruled that under the totality of the circumstances,
failing to do so misled Kim “regarding the factors to be considered in deciding
whether or not to consent to the chemical test(s).” This appeal followed.
The State argues that simultaneously requesting consent for both blood and
breath tests does not invalidate an accused’s consent to testing absent evidence of
coercion. The State contends that the officer’s reading of the implied-consent notice
here was not objectively confusing since the notice as read was substantively accurate,
explicitly stated the consequences for consenting to or refusing testing, and informed
Kim that he could refuse testing.
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Subjecting a person to a breath test and collecting blood or urine samples for
analysis each constitutes a “search” subject to Fourth Amendment protections when
attributable to the government or its agents. See Skinner v. Ry. Labor Execs.’ Ass’n,
489 US 602, 614–17(II)(A)–(B) (109 SCt 1402, 103 LE2d 639) (1989). A warrantless
search is per se unreasonable, “subject only to a few specifically established and welldelineated exceptions.” Williams v. State, 296 Ga. 817, 819 (771 SE2d 373) (2015).
One such exception, valid consent, “eliminates the need for either probable cause or
a search warrant.” Id. at 821. When relying on this exception, “the State has the
burden of proving that the accused acted freely and voluntarily under the totality of
the circumstances.” Id. (quotation marks omitted).
The standard for measuring the scope of a suspect’s consent under the
Fourth Amendment is that of objective reasonableness — what would
the typical reasonable person have understood by the exchange between
the officer and the suspect. The appropriate inquiry is whether a
reasonable person would feel free to decline the officer[’s] request to
search or otherwise terminate the encounter.
Johnson, 297 Ga. App. at 849 (quotation marks omitted). See also Jacobs, 342 Ga.
App. at 480 (quotation marks omitted).
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When drivers are arrested for DUI in Georgia, officers ask them to submit to
chemical testing; the implied-consent statute prescribes the language officers must
use. Olevik v. State, 302 Ga. 228, 230(1)(a) (806 SE2d 505) (2017). For drivers aged
21 years or older (like Kim), that language is as follows:
The State of Georgia has conditioned your privilege to drive upon the
highways of this state upon your submission to state administered
chemical tests of your blood, breath, urine, or other bodily substances for
the purpose of determining if you are under the influence of alcohol or
drugs. If you refuse this testing, your Georgia driver’s license or privilege
to drive on the highways of this state will be suspended for a minimum
period of one year. Your refusal to submit to blood or urine testing may
be offered into evidence against you at trial. If you submit to testing and
the results indicate an alcohol concentration of 0.08 grams or more, your
Georgia driver’s license or privilege to drive on the highways of this state
may be suspended for a minimum period of one year. After first
submitting to the requested state tests, you are entitled to additional
chemical tests of your blood, breath, urine, or other bodily substances at
your own expense and from qualified personnel of your own choosing.
Will you submit to the state administered chemical tests of your
(designate which test)?
OCGA § 40-5-67.1(b)(2). The statute further provides that “the requesting law
enforcement officer shall designate which test or tests shall be administered initially
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and may subsequently require a test or tests of any substances not initially tested.”1
OCGA § 40-5-67.1(a) (emphases added).
Importantly, “obtaining consent for chemical testing pursuant to implied
consent requirements does not dictate which consented-to test will actually be
administered.” Collins v. State, 290 Ga. App. 418, 420(1) (659 SE2d 818) (2008)
(quotation marks omitted), overruled in part on other grounds by State v. Henry, 312
Ga. 632, 638–40(3)(c)–(d) (864 SE2d 415) (2021). Thus, “[a]n officer may advise a
person of his implied consent rights and request multiple tests at one time[,] and the
requesting officer is authorized to decide which test or tests shall be administered.”
Nagata v. State, 319 Ga. App. 513, 515 (736 SE2d 474) (2013) (explaining that an
officer does not “change the meaning” of the notice by requesting multiple tests
(quotation marks omitted)).
Moreover, when determining whether a suspect’s ensuing consent is valid, the
government need not establish knowledge of the right to refuse consent “as the sine
1
The trial court misread the statute by concluding that officers must request one test at a time after separate readings of the implied consent notice. The statute speaks in terms of designating the “test or tests” to be administered if consent is given. Nothing in the statute requires duplicative readings of the notice to simultaneously obtain consent for each type of test.
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qua non of an effective consent,” although such knowledge is “one factor to be taken
into account.” Olevik, 302 Ga. at 251(3)(b) (quotation marks omitted). Instead,
whether a suspect voluntarily consented to testing is considered “under the totality
of the circumstances,” id. at 248(3)(a); accord Williams, 296 Ga. at 821–23, including
the age of the accused, his education, his intelligence, the length of
detention, whether the accused was advised of his constitutional rights,
the prolonged nature of questioning, the use of physical punishment, and
the psychological impact of all these factors on the accused. In
determining voluntariness, no single factor is controlling.
Olevik, 302 Ga. at 251(3)(b) (quotation marks omitted). “[T]he determinative issue
with the implied-consent notice is whether the notice given was substantively accurate
so as to permit the driver to make an informed decision about whether to consent to
testing.” Id. at 481–82.
As suggested by the notice’s text, refusing a blood test has different evidentiary
consequences than refusing a breath test. Compare Elliott v. State, 305 Ga. 179, 180
(824 SE2d 265) (2019) (a refusal to submit to breath testing is inadmissible against an
accused at trial because it implicates the state constitutional right against compelled
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self-incrimination)2, with OCGA § 40-5-67.1(b)(2) (providing that the “refusal to
submit to blood or urine testing” may be admitted against a defendant at trial), and
State v. Dias, 321 Ga. 261, 263–64 (914 SE2d 291) (2025) (the state constitutional
right against compelled self-incrimination does not bar the admission at trial of a
suspect’s refusal to submit to blood testing). But while refusal is an option with
varying consequences, “knowledge of the right to refuse consent is only one factor to
be taken into account, and the State need not demonstrate such knowledge as an
absolute requirement to show effective consent.” Jacobs, 342 Ga. App. at 482.
Moreover, “a defendant’s affirmative response to the implied consent notice may
itself be sufficient evidence of actual and voluntary consent, absent reason to believe
the response was involuntary.” State v. Clay, 339 Ga. App. 473, 475 (793 SE2d 636)
(2016) (quotation marks omitted).
Here, “considering the implied-consent notice as a whole and without isolating
the final question,” the notice as read to Kim “made clear that he had the right to
refuse testing.” Jacobs, 342 Ga. App. at 482. The notice also accurately informed Kim
that, if he refused any testing, his Georgia driver’s license or privilege to drive on
2
See Ga. Const. of 1983, Art. I, Sec. I, Par. XVI (“No person shall be compelled to give testimony tending in any manner to be self-incriminating.”).
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Georgia highways would be suspended for at least a year and that a refusal to submit
to blood or urine testing could be offered into evidence against him at trial. See OCGA
§ 40-5-67.1(b)(2). Thus, the notice indicated both that refusal was an option, see
Jacobs, 342 Ga. App. at 482 (informing a suspect of the consequences for refusing
testing shows that refusal is an option), and that different consequences may flow from
refusing different tests. And “the officer read the implied-consent notice verbatim
with no further comments, threats, or coercion,” Kim “appeared to understand and
answer the officer’s questions appropriately,” and there was no evidence of any
impairment to Kim’s ability to consent. Id. at 483.
While the trial court was apparently concerned that requesting consent to both
breath and blood testing at the same time required Kim to either consent to or refuse
both, nothing in the record establishes that Kim was confused or believed that the
consent was “all or nothing,” and nothing in the notice as read here prevented Kim
from consenting to one type of testing while refusing another. See Nagata, 319 Ga.
App. at 515 (explaining that an officer may “request multiple tests at one time”).
Finally, read as a whole, asking for consent to both breath and blood testing at
the end of the statutory notice is not materially different than asking for consent to
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only breath testing immediately after informing a suspect of the administrative
consequences of refusing all testing and the evidentiary consequences of refusing
blood and urine testing. See generally State v. Young, 339 Ga. App. 306, 311–12 (793
SE2d 186) (2016) (“[T]here is no unlawful coercion where . . . the officer merely
informs the arrestee of the permissible range of sanctions that the State may ultimately
be authorized to impose.” (quotation marks omitted)).
The State met its burden of showing valid consent. Asking for both tests did not
render Kim’s consent to the breath test involuntary. See Jacobs, 342 Ga. App. at
480–82 (concluding that a suspect’s consent to a breath test was not involuntary
where the arresting officer failed to designate the test to which consent was sought);
Jones v. State, 319 Ga. App. 520, 521–24 (737 SE2d 318) (2013) (affirming the denial
of a motion to suppress breath-test results where the officer listed the chemical tests
available and requested and obtained consent to a blood test, but the defendant
ultimately submitted to a breath test); Nagata, 319 Ga. App. at 514–16 (holding that
an officer’s failure to specify the test for which he was requesting consent did not
invalidate the defendant’s consent to a breath test where, as here, the officer informed
the defendant of the different tests available, including a breath test, as “[t]he notice
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given was sufficiently accurate to permit [the defendant] to make an informed decision
about whether to consent to testing” (quotation marks omitted)); Collins, 290 Ga.
App. at 419–20(1) (holding that the notice given was sufficiently accurate to permit
the defendant to make an informed decision about whether to consent to chemical
testing when the officer listed all of the tests available and allowed the defendant to
choose which test to take). See also Jacobs, 342 Ga. App. at 482–83 (emphasizing that
a court “must consider all of the circumstances” surrounding a suspect’s agreement
to submit to a breath test “because no single factor controls”).
Kim’s argument that our decisions in Jacobs, Nagata, and Jones pre-date the
distinctions between the evidentiary consequences for refusing to submit to different
tests is unavailing, as the determinative standard in those decisions — whether the
implied-consent notice was substantively accurate so as to permit the driver to make
an informed decision about whether to consent to testing — remains good law and
applies in this case.
Judgment reversed. Doyle, P. J., and Davis, J., concur.
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