There's an obstacle in Georgia's DUI laws way too big to call a "loophole." This is a yawning chasm into which have fallen both reasonable justice and common sense.
You couldn't make this up -- although American author Joseph Heller did, more than a half-century ago, in his classic novel "Catch-22" about the amoral and brutally circular illogic of bureaucracy, even when human lives are at stake.
The glaring Catch-22 in Georgia's DUI prosecutorial procedure: According to a story aired on Atlanta's WSB-TV and picked up by AJC.com, some drivers who fail breath, blood or urine tests are getting those tests suppressed as evidence on the grounds that they were too drunk at the time to give informed consent.
Got that? If you're really smashed when you get caught, you can argue later that you were too wasted to know what you were doing when you consented to an alcohol impairment test. And the drunker you were, the better your chance of getting the court to suppress evidence of how drunk you were.
A clearer example of an offender benefiting from his or her own wrongdoing would be hard to cite. It upends both sound evidentiary reasoning and common sense. And the potential damage to the usefulness of sobriety tests as a deterrent to drunk driving is all too obvious.
The precedent was set three years ago, when the state Supreme Court ruled that a driver pulled over for a suspected DUI might not "actually" have consented to a blood test. Gwinnett State Court Judge Joseph Iannazzone subsequently threw out the blood test results of that case, and five others.
Though it was the Supreme Court that kicked the initial case back down for reconsideration, the subsequent reasoning of the state court demands at least equally critical scrutiny. A police officer is recorded on patrol car audio telling the suspect, "I need a yes or no to this." Suspect: "A yes or no to what?" Officer: "Will you submit to a state chemical test of your breath under the implied consent law?" Suspect: "I mean (expletive) it, man, why not?"
Any ambiguity in any of that? To the state court judge, apparently there was: "This court finds that the State was only able to show that Defendant's responses indicated acquiescence to the officer's request but was unable to show actual consent."
Maybe police need a new Miranda card explaining the difference between "acquiescence" and "consent."
Prosecutors now can use field officers' testimony, patrol car video and field sobriety test results, but not necessarily breath, blood or urine tests. They can't even tell a jury such test results even exist.
So if you were drunk enough to be convicted, maybe you were too drunk to consent. And if you weren't, maybe you won't be convicted. If this were about something less serious, it would almost be funny.