The State v. Council. , 343 Ga. App. 583 ( 2017 )

SECOND DIVISION
MILLER, P. J.,
DOYLE and REESE, 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
October 30, 2017
In the Court of Appeals of Georgia
A17A1218. THE STATE v. COUNCIL.
REESE, Judge.
The State appeals from the trial court’s grant of Susan Council’s motion in
limine to suppress the results of a breath test obtained after her arrest for driving
under the influence (“DUI”).1 For the reasons set forth, infra, we reverse.
The record shows that, on September 15, 2016, at approximately 9:00 p.m., a
multi-vehicle collision occurred involving the Appellee. A Cobb County police
officer responded to the scene and began to triage individuals involved in the
accident. He spoke to the Appellee to determine if she was injured. The Appellee did
not indicate to the officer that she was injured, and she declined medical treatment.
1
The Appellee was also cited for failure to maintain lane/improper lane change
and following too closely, pursuant to OCGA §§ 40-6-48, 40-6-49, respectively.
She explained to the officer that she “saw traffic stopping ahead but didn’t apply any
brakes[.]” After the officer spoke with the Appellee, emergency medical personnel
and several firefighters told him “they believed that [the Appellee] was under the
influence of alcohol.” The officer called for a DUI Task Force Officer (“DUI officer”)
to continue the investigation.
A DUI officer arrived on the scene and, after speaking with the responding
officer, he spoke with the Appellee. The DUI officer observed a strong odor of
alcohol on the Appellee and that her eyes were bloodshot and watery. She admitted
to having drunk two glasses of wine. During the conversation, the Appellee’s phone
rang, and the DUI officer permitted the Appellee to answer it. After finishing the
phone call, the Appellee blew into a portable Intoxilyzer, which indicated she “tested
positive for alcohol.” The Appellee initially agreed to participate in the Horizontal
Gaze Nystagmus (“HGN”) test, but then declined to perform the remaining
evaluations after the DUI officer reminded her that those tests were voluntary
evaluations to determine if she was safe to drive. The DUI officer testified that there
was no animosity during the field sobriety testing and that the Appellee “was polite
the entire time.”
2
The Appellee was placed under arrest and handcuffed. When the DUI officer
initially started reading the implied consent notice, the Appellee interrupted and
requested to stand on the other side of her vehicle, away from traffic. After the
Appellee moved to the opposite side of her car, the DUI officer started over and read
the implied consent notice. After the Appellee asked the DUI officer whether
Georgia’s laws had changed, the DUI officer read the implied consent notice to her
again. The DUI officer asked the Appellee if she would undergo a breath test, and she
consented. The DUI officer then transported the Appellee to a Cobb County Police
Precinct station.
On the way to the police station, which was a few minutes away from the
accident scene, the Appellee’s phone rang, and she asked the DUI officer if she could
answer it. He apologized to the Appellee and said he could not allow her to answer
her phone. During the conversation, the DUI officer offered to send another officer
to check on the Appellee’s 14-year-old daughter, who was at home alone. The DUI
officer also told the Appellee that, even though it was against the police department’s
policy, “when we get to the precinct, once we’re finished there at the precinct, I’ll let
you call [your boyfriend] to make sure [your daughter] gets checked on.” After
3
arriving at the police station, the DUI officer removed the Appellee’s handcuffs and
administered two breath tests.2
The Appellee filed a motion in limine to exclude the results of her field
sobriety and breath tests. After a hearing, the trial court found probable cause for the
Appellee’s arrest, granted the Appellee’s motion to suppress her HGN test, and ruled
that the administration of the breath test violated the Appellee’s constitutional rights
against self-incrimination. The State filed a timely appeal of the order, challenging
the suppression of the breath test results.3
The trial court’s findings as to disputed facts in a ruling on a
motion to suppress will be reviewed to determine whether the ruling was
clearly erroneous; where the evidence is uncontroverted and no question
regarding the credibility of witnesses is presented, the trial court’s
2
The record does not contain documentation of the Appellee’s breath test
results. See OCGA § 40-6-391 (a) (5) (“A person shall not drive or be in actual
physical control of any moving vehicle while . . . [t]he person’s alcohol concentration
is 0.08 grams or more at any time within three hours after such driving or being in
actual physical control from alcohol consumed before such driving or being in actual
physical control ended[.]”).
3
The trial court’s rulings regarding the HGN test and the finding of probable
cause for the arrest of the Appellee are not part of this appeal.
4
application of the law to undisputed facts is subject to de novo appellate
review.4
In Georgia,
any person who operates a motor vehicle upon the highways or
elsewhere throughout this state shall be deemed to have given consent,
subject to [OCGA § 40-6-392], to a chemical test or tests of his or her
blood, breath, urine, or other bodily substances for the purpose of
determining the presence of alcohol or any other drug, if arrested for any
offense arising out of acts alleged to have been committed in violation
of [OCGA § 40-6-391] or if such person is involved in any traffic
accident resulting in serious injuries or fatalities.5
A compelled breath test falls under the protections from unreasonable search
and seizure provided by the Fourth Amendment to the United States Constitution and
the Georgia Constitution.6 Further, “[a] consent to search will normally be held
voluntary if the totality of the circumstances fails to show that the officers used fear,
intimidation, threat of physical punishment, or lengthy detention to obtain the
4
State v. Gauthier, 326 Ga. App. 473, 473-474 (756 SE2d 705) (2014)
(citation, footnote and punctuation omitted).
5
OCGA § 40-5-55 (a).
6
See Kendrick v. State, 335 Ga. App. 766, 768 (782 SE2d 842) (2016).
5
consent.”7 However, consent to a search and/or seizure that is “freely and voluntarily”
given “under the totality of the circumstances” eliminates the need for a warrant.8
With these guiding principles in mind, we turn now to the State’s specific claims of
error.
The State argues that the trial court erred in ruling that the administration of the
breath test violated the Appellee’s right against self-incrimination provided by the
Georgia Constitution. Specifically, the State argues that the Appellee’s right against
self-incrimination was not violated because the State did not compel the Appellee to
submit to the breath test. We agree.
Under the Georgia Constitution, “[n]o person shall be compelled to give
testimony tending in any manner to be self-incriminating.”9 Recently, the Supreme
Court of Georgia decided that a compelled breath test also falls under the Georgia
Constitutional right against self-incrimination, which protects individuals from
7
Cuaresma v. State, 292 Ga. App. 43, 47 (2) (663 SE2d 396) (2008) (footnote
omitted).
8
Kendrick, 335 Ga. App. at 768 (citations and punctuation omitted).
9
Ga. Const. of 1983, Art. I, Sec. I, Par. XVI; See also OCGA § 24-5-506 (a)
(“[n]o person who is charged in any criminal proceeding with the commission of any
criminal offense shall be compellable to give evidence for or against himself or
herself.”)
6
having the results of a compelled breath test, or their refusal to submit to such testing,
admitted against them in any criminal proceeding.10 The Court held that the implied
consent notice itself is still constitutional because the language of the notice is not per
se coercive.11 Moreover, the Supreme Court of Georgia reaffirmed that the right
against self-incrimination is not violated where an accused voluntarily consents to the
act.12 “[T]he totality of the circumstances test to determine the voluntariness of an
incriminating statement or act for due process purposes is the same test used to
determine the voluntariness of a consent to chemical testing in the DUI context.”13
In its order on the Appellee’s motion in limine to suppress, the trial court found
that the Appellee “was compelled to [perform the breath test], and to do that act two
10
Olevik v. State, No. S17A0738, 2017 WL 4582402 at *12 (2) (c) (iv) (Ga.
Oct. 16, 2017) (The Supreme Court of Georgia overruled Klink v. State, 272 Ga. 605
(533 SE2d 92) (2000) and its progeny to the extent the cases stand for the proposition
that “Paragraph XVI of the Georgia Constitution does not protect against compelled
breath tests or that the right to refuse to submit to such testing is not a constitutional
right.”).
11
Id. at *16 (3) (b).
12
Id. at *9 (2) (c) (iii).
13
Id. at *13 (3) (a) (i) (punctuation omitted).
7
times, to produce evidence against herself in violation of her Georgia Constitutional
right against self-incrimination.”
In the present case, the Appellee asked the DUI officer numerous questions
about the different field sobriety tests and the breath test throughout the interaction.
From the record, including the video recordings of the interaction between the
Appellee and the DUI officer, the officer patiently and calmly answered her
questions. Further, the Appellee appeared to understand and respond to questions.
The DUI officer testified that he did not make any promises in exchange for the
Appellee’s agreement to submit to a breath test. And, although the DUI officer did
not allow the Appellee to make any phone calls until they were finished with the
breath tests, there is no evidence that the Appellee was forced to take the breath tests
against her will in order to make the phone calls, as the trial court appears to imply.
In other words, the Appellee was not going to be allowed to make the calls until she
either took the breath tests or refused to do so. Thus, refusing to allow her to make
the calls did not constitute coercion.14
14
See Olevik at *13 (3) (a) (i).
8
Therefore, under the totality of circumstances presented in this case,15 we find
that the State did not coerce or compel the Appellee to undergo the breath tests. Thus,
her agreement to the breath tests did not violate her right against self-incrimination.16
Based on our holding, the Appellee was not compelled to undergo the breath
tests. Therefore, we do not reach the State’s remaining argument.
Judgment reversed. Miller, P. J., and Doyle, J., concur.
15
Id.
16
Id.
9