DocketNumber: A18A0764
Citation Numbers: 813 S.E.2d 170
Judges: Ellington
Filed Date: 3/29/2018
Status: Precedential
Modified Date: 7/29/2022
Following a bench trial, the State Court of Gwinnett County found Roger Canelas guilty of driving under the influence of alcohol to the extent it was less safe to drive, OCGA § 40-6-391 (a) (1) ; driving while having an alcohol concentration of 0.08 grams or more (DUI per se), OCGA § 40-6-391 (a) (5) ; and driving without a valid driver's license, OCGA § 40-5-20 (a). Following the denial of his motion for a new trial, Canelas appeals, challenging the sufficiency of the evidence. Canelas also argues that the trial court erred in denying his motion to suppress (1) because there was not probable cause to arrest him for DUI, and (2) because he was not placed under actual, valid arrest prior to the reading of the implied consent notice. For the reasons set forth below, we reverse Canelas's conviction for driving without a valid license, vacate his sentence, and remand this case to the trial court for resentencing. We affirm the judgment in all other aspects.
Viewed in the light most favorable to support the verdict,
The officer followed the ambulance to the hospital and spoke with Canelas in his treatment room. The officer's training supervisor was also present. The arresting officer noticed that Canelas had bloodshot eyes and a strong odor of alcohol about his person. Asked if he had had anything to drink, Canelas again responded the he had drunk "a couple of beers." The officer verbally told him, "You are under arrest for DUI-less safe," and read the implied consent notice, concluding with a request that he submit to a state administered chemical test of his blood as provided in the implied consent law. The officer testified that he did not put Canelas in handcuffs because he was on the gurney and nurses were putting IVs in his arm and treating the bruising and abrasions on his arm, and he did not want to interfere with the medical treatment. Canelas gave his consent to the blood test, and at 2:46 a.m. an ER nurse drew his blood for testing. The officer left Canelas, who was still receiving medical treatment, in the custody of the hospital security staff and went to the police station with the evidence. Within the hour, the officer sought and obtained an arrest warrant. For reasons not apparent in the record, another officer served the warrant a few days later. The result of the blood alcohol test was a level of 0.153 grams per 100 ml. 1. Canelas challenges the sufficiency of the evidence as to each offense. On appeal from a criminal conviction, the appellate court
Whether a suspect is under custodial arrest is a mixed question of law and fact. Therefore, to the extent that determination of the issue hinges on resolution of factual questions, an appellate court construes the evidence most favorably to uphold the trial court's findings and accept those findings unless they are clearly erroneous; but the appellate court independently applies the legal principles to those facts.
(Punctuation and footnotes omitted.) Plemmons v. State ,
Construing the evidence in favor of the trial court's findings, we conclude that, even if Canelas was allowed to leave the hospital later, the evidence authorized the trial court to find that at the time the officer read the implied consent notice to him a reasonable person in his position would have believed that he was under arrest. Plemmons v. State ,
4. Lastly, the trial court imposed a sentence of twelve months probation for each count of the accusation, to be served concurrently. Because the DUI convictions were predicated on the same conduct, they merged, and the trial court erred in imposing sentence on both, as conceded by the State. Smith v. State ,
Judgment affirmed in part, reversed in part, and vacated in part, and case remanded.
Bethel, J., and Senior Appellate Judge Herbert E. Phipps, concur.
See Jackson v. Virginia ,
See also Clay v. State ,