Howell v. State , 266 Ga. App. 480 ( 2004 )

Phipps, Judge.

Lance Hugh Howell appeals his convictions of driving under the influence of alcohol with an unlawful blood-alcohol concentration and of being in possession of an open container of an alcoholic beverage while operating a motor vehicle. He contends that the trial court erred in (1) denying his motion to suppress the results of a state-administered breath test, (2) instructing the jury that he had the burden of showing any human errors in the administration or interpretation of field sobriety evaluations, and (3) denying his plea of double jeopardy. Finding merit in Howell’s first claim of error, we reverse his convictions.

“On review, this Court will uphold a trial court’s findings as to disputed facts in a motion to suppress unless clearly erroneous, whereas the trial court’s application of the law to undisputed facts is subject to de novo appellate review. [Cit.]”¹ In this case, the facts are not disputed.

State’s evidence showed that at around 1:00 a.m. on February 8, 2002, Cherokee County Deputy Sheriff Carl Pope was on patrol when he observed Howell operating a truck in violation of various rules of the road. As a result, Pope initiated a traffic stop. Upon speaking to Howell, Pope detected a strong odor of an alcoholic beverage. After Howell admitted to Pope that he had consumed some beer, Pope conducted a DUI investigation by having Howell blow into an alcosensor machine and perform various field sobriety tests. Pope thereupon concluded that Howell was too impaired to operate a motor vehicle safely and arrested him for DUI. While conducting an inventory of Howell’s truck, Pope found an open can of beer.

Pope gave Howell implied consent warnings and asked him to submit to a state-administered breath test. Howell said no. Pope, however, testified that through his training and experience, he has “always been taught to put them [DUI arrestees] in front of the machine to consider that a refusal. And I don’t take the answer no on the scene.” Consequently, Pope placed Howell in his patrol car and transported him to the Cherokee County Adult Detention Center where he asked City of Holly Springs Police Officer Rodney Campbell to administer an Intoxilyzer 5000 test. Campbell did so, and Howell’s breath samples registered 0.179 and 0.180 grams. Although Campbell could not recall his conversation with Howell, he testified that he normally advises suspects that the Intoxilyzer 5000 is a state test, that they need to blow into the machine, and that “if they are not blowing, then that’s considered] a refusal.” Campbell did not recall that he deviated from that protocol in this case or that Howell refused to cooperate.

1. (a) In reliance on State v. Highsmith,² Howell first contends that the trial court erred in denying his motion to suppress the results of the Intoxilyzer breath test. We agree.

In Highsmith, the arresting officer read the defendant implied consent warnings and asked him to submit to a blood test. The officer testified that the defendant initially expressed reluctance to having needles stuck in him and refused testing, but that he engaged the defendant in further conversation and persuaded him to consent. Applying a “totality of the circumstances” test as would be proper in determining whether a confession is freely and voluntarily given, the trial court granted Highsmith’s motion to suppress the results of the blood test. We reversed.

We recognized in Highsmith that in Georgia, the state may constitutionally take a blood sample from a defendant without his consent and that our implied consent statute thus grants a suspect an opportunity, not afforded him by our constitution, to refuse to take a blood-alcohol test.³ Therefore, we found it improper to apply a “totality of the circumstances” test in determining the validity of a defendant’s decision to rescind his refusal to submit to state-administered testing. In Highsmith, we concluded that “[t]he issues to be determined are simply whether the officer told the suspect of his implied consent rights in a timely fashion, and whether the suspect revoked the implied consent.”⁴ We further held, however, that “[a]s with any procedure, the court must evaluate the officer’s actions to determine if the officer acted reasonably in the situation and whether the procedure was applied in a fair manner.”⁵ Finding it clear from the record that the officer in Highsmith had not acted unreasonably, we held that the results of the test should have been admitted in evidence.

In this case, upon being read implied consent warnings by one of the arresting officers, Howell unequivocally revoked his implied consent. Without engaging Howell in further discourse, Pope arrested him and transported him to a police station where he directed another officer to administer the breath test. The second officer instructed Howell to blow into the breath testing device. There is no evidence Howell was asked a second time whether he would consent to a state-administered test and no evidence that he rescinded his refusal and thereafter consented. He was thus administered a breath test simply because he did not refuse to cooperate.⁶ We cannot deem such a procedure to be fair or such actions by an officer to be reasonable. Consequently, the trial court erred in denying Howell’s motion to suppress.

(b) According to the dissent, testimony given by Campbell could support a finding that Howell actually requested the breath test. The trial court, however, did not find that Howell actually requested the test. The state does not argue that Howell requested the test. Areview of the totality of Campbell’s testimony reveals why.

Campbell testified on direct examination by the prosecuting attorney that he was at the detention center at the time in question because he had been “requested by another officer to run the Intoxilyzer.” Campbell then proceeded to testify that, “[w]hat transpired into the test was, Deputy’s Pope’s arrest and — ... his prisoner’s request for the Intoxilyzer.” At that point, it certainly appeared as though Campbell might have been testifying that Howell requested the test. But the trial court immediately interjected and asked Campbell exactly “what was said and by who and what.” Campbell then responded that he did not recall any conversation and only recalled running the test. In response to further questioning by the court as to whether he recalled Howell “saying or doing anything that might give you an indication about whether he wanted to take the test or didn’t want to take the test,” Campbell testified that he would not have administered the Intoxilyzer breath test (which, Pope testified, he had asked Campbell to run) if Howell had refused to take the test and that he did not recall Howell ever requesting an independent test.

Later on cross-examination, defense counsel asked Campbell whether he would have given Howell a test if Pope had told him that Howell had previously refused to submit to testing. Campbell responded, “If he requested one, yes, sir.” (Emphasis supplied.) In the context of the entirety of his testimony, it certainly would appear that Campbell’s utterance of the word “he” was a reference to Pope and not Howell. Nonetheless, defense counsel then asked Campbell, “Well, when was it that Mr. Howell requested the test?” (Emphasis supplied.) Campbell then responded that it was approximately 2:00 a.m. and that if he (Campbell) gave the test, “they” requested it.

Neither the state nor the trial court interpreted either the testimony given by Campbell on direct examination, or his ambiguous responses to defense counsel’s confusing line of questioning on cross, as evidence that Howell actually requested that he be given the breath test.⁷ The state claims, without citation to the record, that upon arrival at the jail, Howell “was asked again whether he wished to submit to a state-administered test of his breath” and that he consented. In ruling on Howell’s motion to suppress, the trial court remarked that Howell was “sat down in a chair and just told to blow.” The court denied the motion to suppress on grounds that although Howell initially refused to take the test, and although there was no evidence that he rescinded his initial refusal by actually requesting a test, there was also no evidence that he was coerced into taking the test. In so ruling, the court specifically noted that “while I don’t have any direct evidence that he [Howell] specifically said now I want to take the test, I don’t have any evidence to the contrary that he was coerced or forced to do it....” When defense counsel pointed out that the State had presented no evidence that Howell had ever given the officers any indication that he had ever changed his mind, the court responded, “Other than he took the test.”⁸ In the order denying Howell’s motion to suppress, the trial court ruled that he had “consented to” the state-administered breath test.

In Dept. of Public Safety v. Seay,⁹ cited by the dissent, the defendant refused testing but then reconsidered and made affirmative requests for a test. The requests were denied as untimely, and the defendant’s driver’s license was suspended in administrative proceedings because of his refusal to take the state-administered test. Considering evidence that the defendant in fact had rescinded his refusal to submit to testing in a timely manner, the superior court reversed.

In affirming the superior court’s decision, we noted that no Georgia decisions had articulated any guidelines for determining whether a refusal to submit to a state-administered chemical test has been properly rescinded. In Seay we approvingly cited Standish v. Dept. of Revenue, Motor Vehicle Div.,¹⁰ wherein the Supreme Court of Kansas

declared that in order to be effective, a subsequent consent after a refusal to take a chemical test must be made: “(1) within a very short and reasonable time after the prior first refusal; (2) when a test administered upon the subsequent consent would still be accurate; (3) when testing equipment is still readily available; (4) when honoring the request would result in no substantial inconvenience or expense to the police; and (5) when the individual requesting the test has been in the custody of the arresting officer and under observation for the whole time since arrest.”¹¹

We adopted these guidelines as our own.

The guidelines adopted in Seay thus assume that in order for rescission of a refusal to submit to state testing to be effective, the defendant must affirmatively request that a test be given. Under Highsmith, however, that is not an inflexible requirement. Highsmith requires only that the procedure utilized by the officer in attempting to persuade a defendant to rescind his refusal be fair and reasonable. Merely sitting the defendant down and telling him that he needs to blow into the machine, as found by the trial court, can hardly be considered a fair and reasonable procedure.

According to the dissent, Howell was informed by the implied consent warnings that he had a right to refuse testing. In this regard, Pope testified that he read Howell the implied consent notice for suspects age 21 or over. That notice is set forth in OCGA § 40-5-67.1 (b) (2), which provides:

Georgia law requires you to submit 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 the required 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 required 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 tests) under the implied consent law?

(Punctuation and emphasis omitted.) Howell said no. Unlike the defendant in Highsmith, he was not even asked to reconsider his decision. He was simply told, later, that he needed to blow into the machine and that his failure to do so would be considered a refusal. Because that procedure can hardly be considered reasonable, Howell’s consent to testing was not validly obtained.

2. Howell contends that the trial court erred in instructing the jury that “[f]ield sobriety evaluations, as with any other form of evaluation, may be subject to human error in their administration or interpretation, and the burden of showing such errors rests with the party who is challenging the weight of said evidence.” Howell argues that this jury charge was unconstitutionally burden-shifting under Sandstrom v. Montana.¹² We find no merit in this argument.

In Sandstrom, the United States Supreme Court held that a reasonable juror could have interpreted the instruction that the law presumes that a person intends the ordinary consequences of his voluntary acts in either of two impermissible ways.¹³ First, it was held that a reasonable juror could have interpreted the instruction as a mandatory or conclusive presumption which would relieve the state of the burden of proving an element of the crime.

Second, the Supreme Court in Sandstrom held that the jury may have interpreted the instruction “as a direction to find intent upon proof of the defendant’s voluntary actions (and their ‘ordinary’ consequences), unless the defendant proved the contrary by some quantum of proof which may well have been considerably greater than ‘some’ evidence — thus effectively shifting the burden of persuasion on the element of intent.” [Cit.]

Thus, the Court indicated that it would not be constitutionally impermissible merely to require the defendant to come forward with some evidence contrary to the presumption, i.e., to place on the defendant a burden of producing evidence or a burden of production. However, the Supreme Court held that the jury in Sandstrom’s case could have interpreted the presumption referred to in the complained-of instruction as meaning “that upon proof by the State of the slaying, and of additional facts not themselves establishing the element of intent, the burden was shifted to the defendant to prove that he lacked the requisite mental state.” [Cit.] Such a presumption, said the Court, is constitutionally infirm under Mullaney v. Wilbur¹⁴ and Patterson v. New York,¹⁵ as well as In re Winship.¹⁶ . . .”¹⁷

The jury instruction in this case did not relate to any element of the crime. It was merely an application of the principle, as contained in OCGA § 24-4-1, that the burden of proving a fact generally lies upon the party who is asserting it. The charge was not burden shifting under Sandstrom.

3. Howell contends that his double jeopardy plea should have been sustained, because the trial court without manifest necessity declared a mistrial at the first trial instead of ordering a continuance.

Howell’s case initially came on for trial in September 2002. During the course of the trial, the prosecutor’s office came into possession of an arrest booking form in which one of the law enforcement officers at the detention center had noted that Howell did not appear to be under the influence of alcohol or drugs. The prosecutor promptly provided defense counsel with this exculpatory material. Upon being informed of the matter, the court immediately told defense counsel that it was inclined to grant a continuance but not a mistrial. Defense counsel thereupon moved for a continuance. After some discussion, the court announced that it was going to excuse the jury and call the case back for trial in October before another jury. The court then summoned the jurors into the courtroom and excused them. Afterward, the court conferred with defense counsel to ensure that he would be available for the call of the case the following month, and defense counsel assured the court that he would. But defense counsel later filed a motion to dismiss on account of former jeopardy. At the beginning of the second trial, the court denied the plea.

Although the court announced its intent to grant a continuance at the first trial, it in effect declared a mistrial by excusing the jury and ordering that the case be retried before another jury.

Once a jury is impaneled and sworn, jeopardy attaches and a defendant is entitled to be acquitted or convicted by that jury. If a mistrial is declared without the defendant’s consent or over his objection, he may be retried only if there was a manifest necessity for the mistrial. If a defendant consents to a mistrial, he may not later use the mistrial as the basis of a plea of double jeopardy. Consent to the grant of a mistrial can be express or implied.¹⁸

The transcript of Howell’s first trial reflects that, while the jurors were outside the courtroom, the trial court announced its intention to excuse them and then summoned them into the courtroom and told them they could leave. Defense counsel had an opportunity to raise an objection after the court announced its intention to excuse the jurors and before they were returned to the courtroom. He did not. Therefore, the court was authorized to find that Howell, through counsel, impliedly consented to the grant of the mistrial. For this reason, we cannot say that his plea of double jeopardy was improperly denied.

For the reasons given in Division 1, the judgment is reversed.

Judgment reversed.

Smith, C. J., Ruffin, R J., Miller and Ellington, JJ., concur. Andrews, P. J., and Blackburn, P. J., dissent.

1 State v. Langlands, 276 Ga. 721 (1) (583 SE2d 18) (2003).

2 190 Ga. App. 838 (380 SE2d 272) (1989).

3 Id. at 839.

4 (Citations omitted.) Id.

5 Id.

6 Compare Deering v. State, 168 Ga. App. 835, 836 (2) (310 SE2d 720) (1983) (where the defendant signed a consent to have his blood drawn).

7 In our opinion, finding the existence of such evidence would require us to change our “role from disinterested decision-maker to appellate advocate reviewing a trial record for error.” Rowland v. State, 264 Ga. 872, 874 (1) (452 SE2d 756) (1995).

8 Defense counsel then argued that actual coercion should not have to be shown because a police station is an inherently coercive setting. Although Miranda v. Arizona is based on just such a theory, the trial court rejected defense counsel’s argument.

9 206 Ga. App. 71, 72 (1) (424 SE2d 301) (1992).

10 235 Kan. 900, 902-903 (683 P2d 1276, 1280) (1984).

11 206 Ga. App. at 73 (1).

12 442 U. S. 510 (99 SC 2450, 61 LE2d 39) (1979).

13 Williams v. Kemp, 255 Ga. 380, 381 (338 SE2d 669) (1986).

14 421 U. S. 684 (95 SC 1881, 44 LE2d 508) (1975).

15 432 U. S. 197 (97 SC 2319, 53 LE2d 281) (1977).

16 397 U. S. 358 (90 SC 1068, 25 LE2d 368) (1970).

17 Williams, 255 Ga. at 381.

18 (Citations omitted.) Akery v. State, 237 Ga. App. 549, 550 (515 SE2d 853) (1999).