Brown v. the State ( 2015 )

SECOND DIVISION
ANDREWS, P. J.,
MILLER and BRANCH, JJ.
NOTICE: Motions for reconsideration must be
physically received in our clerk’s office within ten
days of the date of decision to be deemed timely filed.
http://www.gaappeals.us/rules
November 13, 2015
In the Court of Appeals of Georgia
A15A1425. BROWN v. THE STATE.
BRANCH, Judge.
Raymond J. Brown was arrested for driving under the influence of alcohol. He
moved to suppress the State’s alcohol breath test results. The trial court denied the
motion but certified the order for immediate review. We granted Brown’s application
for interlocutory appeal. For the reasons that follow, we affirm.
On review of a ruling on a motion to suppress, the trial judge’s findings of fact
should not be disturbed if there is any evidence to support them; determinations of
fact and credibility must be accepted unless clearly erroneous; and the evidence must
be construed in favor of the trial court’s findings and judgment. Tate v. State, 264 Ga.
53, 54 (1) (440 SE2d 646) (1994); Jackson v. State, 258 Ga. App. 806, 807-808 (2)
(575 SE2d 713) (2002). “In all cases, [appellate courts] independently apply the law
to the facts.” Drake v. State, 296 Ga. 286, 288 (2) (766 SE2d 447) (2014) (citation
omitted).
Construed in favor of the trial court’s decision, the record shows that on
December 26, 2013, at approximately 10:18 p.m., Sergeant Long of the Lawrenceville
Police Department performed a traffic stop on Brown after seeing Brown driving
erratically and in violation of the law. After observing signs suggesting that Brown
was intoxicated, Long had Brown perform field sobriety tests, following which Long
arrested Brown for driving under the influence of alcohol; Long then read to Brown
Georgia’s implied consent notice. Brown agreed to take the State’s breath test, and
Long transported Brown to the Lawrenceville Police Department for that purpose.
After the breath test, Brown stated that he wanted a urine test but “he was unsure as
to where to obtain a urine test”; he asked Long for a recommendation. Long replied
that he could not make such recommendations, and, in response to Brown’s request,
Long brought Brown two telephone books and allowed him to use the telephone.
Brown called his mother and, while still on the phone, he asked Long if he
could be transported to Northside Hospital in Forsyth County. There is no indication
that Brown gave Long a reason for making that choice. Long believed that the
location was too far away and that the request was unreasonable given all of the
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facilities that were “in the Gwinnett County area.” But not wishing to make that
decision alone, Long contacted the on-duty magistrate court judge and asked for the
judge’s opinion on the matter; the judge told Long that given the number of facilities
in Gwinnett County that could provide the testing, it would be unreasonable, in his
opinion, to leave Gwinnett County. In addition, Long was the supervisor of the DUI
unit and had officers reporting to him, and he therefore did not want to have to travel
too far or take too much time from his duties in Lawrenceville. Long told Brown the
magistrate’s opinion while Brown was still on the telephone with his mother, and
Brown then asked to be transported to Emory Johns Creek Hospital; there is no
indication that Brown gave Long a reason for choosing that location. Long was of the
opinion that this, too, was unreasonable because the location was in Fulton County
and he knew it to be farther than some other facilities. Brown, who was still on the
telephone, then requested to be taken to the Gwinnett Medical Center in Duluth
(GMC-D) because he was familiar with that hospital and had undergone an
appendectomy there not long before. Long agreed to the request, and he took Brown
there for an independent test; Brown had to call his mother again from the hospital
in order to obtain credit card information so that he could pay for the test. Long
testified that he did not know the mileage from the police department to the first two
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locations that Brown requested, or their addresses. Brown testified that the mileage
from the police department to GMC-D was 13.5 miles and that the Emory facility was
approximately 3 miles further from the police department. When asked if he
ultimately received an “independent test,” Brown replied that he had.
OCGA § 40-6-392 (a) (3) provides that a person accused of driving under the
influence of alcohol has a right to obtain, in addition to any test administered by the
State, an independent chemical test of his blood or urine by a “qualified person of his
own choosing.” See Hendrix v. State, 254 Ga. App. 807, 808 (564 SE2d 1) (2001)
(punctuation and footnote omitted). The State has the burden of showing compliance
with the statute. State v. Metzager, 303 Ga. App. 17, 19 (692 SE2d 687) (2010). The
Code provision requires that a suspect is to be given “a meaningful opportunity to
choose the testing facility.” Hendrix, 254 Ga. App. at 808 (footnote omitted).
“Nonetheless, if the suspect’s choice is unreasonable, a law enforcement officer is
justified in refusing to accommodate the request.” Id. (footnote omitted). The trial
court may consider several factors in resolving this issue, including the following:
(1) availability of or access to funds or resources to pay for the requested
test; (2) a protracted delay in the giving of the test if the officer complies
with the accused’s requests; (3) availability of police time and other
resources; (4) location of [the] requested facilities, e.g., the hospital to
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which the accused wants to be taken is nearby but in a different
jurisdiction; [and] (5) opportunity and ability of accused to make
arrangements personally for the testing.
State v. Buffington, 189 Ga. App. 800, 802 (377 SE2d 548) (1989); Lenhardt v. State,
271 Ga. App. 453, 455 (2) (610 SE2d 86) (2005). An additional factor to be
considered is whether the suspect actually made arrangements with a qualified person
of his own choosing prior to asking the officer to transport him to that location.
Luckey v. State, 313 Ga. App. 502, 503-504 (2) (722 SE2d 114) (2012); Harper v.
State, 164 Ga. App. 230, 231 (1) (296 SE2d 782) (1982). But an officer is not
required to ask the suspect “where and by whom she wish[es] the elective test
performed.” Luckey, 313 Ga. App. at 504 2); compare Akin v. State, 193 Ga. App.
194, 195 (387 SE2d 351) (1989) (the issue of arrangements was moot where officer
refused to transport suspect anywhere other than three designated hospitals).
Applying all of these factors, the trial court must determine whether under the totality
of the circumstances, the suspects’s request was reasonable. Hendrix, 254 Ga. App.
at 808.
Here, the trial court found that Brown was able to exercise his right to have a
chemical test of his blood by a qualified person of his own choosing and that no basis
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exists for the exclusion or suppression of the evidence. Although “the mere fact that
the requested facility is in another jurisdiction does not justify an officer’s refusal to
accommodate a suspect,” Hendrix, 254 Ga. App. at 808 (footnote omitted), Long
offered additional facts to justify his refusal to take Brown to the two hospitals
located outside of Gwinnett County. Long was willing to take Brown to facilities that
were “in the Gwinnett County area”; Long was a supervisor and did not want to travel
too far or take too much time away from those reporting to him; the requested
facilities were further away than those in the Gwinnett County area; and Long
obtained the opinion of a magistrate judge that a request to go to a facility outside of
Gwinnett was unreasonable. In addition, Brown did not make arrangements with
anyone at the facilities in Fulton and Forsyth to ensure that those facilities were able
and willing to perform a test, and, ultimately, Long took Brown to a hospital that
Brown selected.
This evidence supported the ruling of the trial court, and we therefore conclude
that the trial court did not err by denying the motion to suppress. See Lenhardt, 271
Ga. App. at 456 (2) (officer acted reasonably in denying requested facility where
requested facility was 13 miles farther than facility ultimately chosen by suspect and
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outside of officer’s jurisdiction and patrol area; the officer’s department was short-
staffed; and there were other hospitals in the area of the arrest).
Judgment affirmed. Andrews, P. J., and Miller, J., concur.
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