Laroy Edward Melton v. State ( 2020 )

FIRST DIVISION
BARNES, P. J.,
GOBEIL, J., and SENIOR APPELLATE JUDGE PHIPPS
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
April 2, 2020
In the Court of Appeals of Georgia
A20A0457. MELTON v. THE STATE.
PHIPPS, Senior Appellate Judge.
In this DUI case, we granted Laroy Edward Melton’s application for
interlocutory appeal to review the trial court’s order denying his motion to suppress
evidence of the state-administered breath test. Melton alleges that the trial court erred
(1) by failing to apply the totality of the circumstances test to determine whether he
voluntarily consented to the breath test and (2) by failing to find that a portion of
Georgia’s implied consent notice was unconstitutionally misleading and coercive in
violation of the Georgia Constitution. Because the trial court failed to issue a finding
addressing the voluntariness of Melton’s consent to the breath test based upon the
totality of the circumstances, we vacate the trial court’s order and remand this case
for a ruling on this issue.
On a motion to suppress, the State has the burden of proving that
a search was lawful. Thus, when relying on the consent exception to the
warrant requirement, the State has the burden of proving that the
accused acted freely and voluntarily under the totality of the
circumstances. Where, as here, the relevant facts are undisputed, this
Court’s review is de novo.
(Citations and punctuation omitted.) Hernandez v. State, 348 Ga. App. 569, 569 (824
SE2d 67) (2019).
The record shows that on December 24, 2017, a Gwinnett County police officer
stopped Melton for speeding. The officer noticed a strong odor of alcoholic beverage
emanating from inside the car, and that Melton had bloodshot eyes and slurred
speech. Melton admitted to the officer that he had recently consumed alcohol. In
addition, Melton exhibited impairment on field sobriety tests and had a positive
alcosensor reading, indicating that he was under the influence of alcohol. The officer
arrested Melton and read him the implied consent notice for suspects age 21 or over
pursuant to former OCGA § 40-5-67.1 (b) (2), which informed Melton that his refusal
to submit to the required testing may be offered into evidence against him at trial.1
1
OCGA § 40-5-67.1 (b) (2) was subsequently amended, effective April 28, 2019,
to remove this provision indicating that a defendant’s refusal to submit to a breath test
could be admitted as trial evidence. See Ga. L. 2019, p. 295, § 2.
2
Melton consented to a state-administered breath test. The test results revealed that
Melton had a blood alcohol concentration of 0.099, which was in excess of the legal
limit of 0.08. Melton subsequently was charged with DUI per se, DUI less safe, and
speeding.
Melton filed a pretrial motion to suppress the breath test, claiming that he was
coerced to submit to the test while he was in custody and after being misinformed that
his refusal to consent would be used against him at trial. Following a hearing, the trial
court denied the motion, finding that Melton had consented to the breath test and that
Melton was not entitled to Miranda warnings before the administration of the breath
test. The court then granted Melton a certificate of immediate review.
Melton filed a timely application in the Georgia Supreme Court seeking review
of the trial court’s denial of his motion to suppress. The application was transferred
to this Court based upon the Supreme Court’s conclusion that
the constitutional question presented . . . – whether the language
contained in OCGA § 40-5-67.1 is per se coercive when used to obtain
consent to a state-administered breath test, such that it violates the due
process guarantees of the United States and Georgia Constitutions –
requires only the application of well-established constitutional
principles to the facts of this case. See Elliott v. State, 305 Ga. 179 (824
SE2d 265) (2019); Olevik v. State, 302 Ga. 228 (806 SE2d 505) (2017).
3
We granted Melton’s application for interlocutory appeal, and this appeal ensued.
The Georgia Supreme Court’s decisions in Elliott and Olevik hold that the
protection against compelled self-incrimination provided by Article I, Section I,
Paragraph XVI of the Georgia Constitution affords a DUI suspect the right to refuse
a state-administered breath test. Elliott, 305 Ga. at 179-180; Olevik, 302 Ga. at 243(2) (c) (iii). In Elliott, the Supreme Court further concluded that this state
constitutional right prohibits admission of evidence that a DUI suspect refused a
breath test. Elliott, 305 Ga. at 180, 209-210 (IV). Although OCGA § 40-5-67.1 (b)
“is not per se coercive,” Olevik, 302 Ga. at 247 (3), the Supreme Court recognized
that “the fact that an officer reads a suspect the implied consent notice and otherwise
complies with implied consent procedures does not mean that the suspect gives actual
and voluntary consent to a particular test for Fourth Amendment purposes.” (Citation
omitted.) Elliott, 305 Ga. at 222 (III) (E). When a defendant challenges the
voluntariness of his consent to a breath test, the trial court must examine the totality
of the circumstances surrounding the consent. Olevik, 302 Ga. at 251 (3).
“Determining the voluntariness of (or lack of compulsion surrounding) a defendant’s
[consent to a breath test] involves considerations similar to those employed in
4
determining whether a defendant voluntarily consented to a search,” including such
factors as
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.
(Citation omitted.) Olevik, 302 Ga. at 251 (3) (b).
Melton has challenged the voluntariness of his consent to the breath test under
the totality of the circumstances, including his contention that he was uncomfortable
and in pain when the implied consent notice was read to him and that the implied
consent notice contained the misleading, coercive threat that his refusal to submit to
the breath test could be used as evidence at trial. But the trial court’s order failed to
address the issue of voluntariness in accordance with the totality of the circumstances
test. Under these circumstances, we must remand this case to the trial court for the
entry of findings and a conclusion addressing the voluntariness issue. See State v.
Turnquest, 305 Ga. 758, 775-776 (5) (827 SE2d 865) (2019) (remanding case for the
trial court to consider defendant’s argument that his breath test results should be
suppressed because the implied consent advisement provided to him was misleading,
5
implicating the decision in Elliott). See also Elliott, 305 Ga. at 223 (III) (E)
(recognizing that its holding “may affect a totality-of-the-circumstances inquiry into
whether a defendant voluntarily submitted to a breath test where the State first
threatened that, if [the test was] refused, that would be evidence against [defendant]
at trial.”).
Judgment vacated and case remanded. Barnes, P. J., and Gobeil, J., concur.
6