November 12, 2014
DUI. Fulton State Court. Before Judge Richardson.
Chestney Law Firm, James K. Sullivan, for appellant.
Carmen D. Smith, Solicitor-General, R. Leon Benham, Assistant Solicitor-General, for appellee.
DOYLE, Presiding Judge. Miller and Dillard, JJ., concur.
Doyle, Presiding Judge.
Following a bench trial, Robert Charales a/k/a Robert Chakales was found guilty of driving under the influence to the extent it was less safe to drive (" DUI less safe" ) and driving under the influence [329 Ga.App. 534] with an unlawful alcohol concentration (" DUI per se" ). Charales appeals the denial of his subsequent motion for new trial, arguing that the trial court erred by denying his pretrial motion to suppress because (1) the checkpoint at which he was stopped was unlawful, and (2) police failed to timely read him the implied consent notice. Because the State failed to demonstrate that the law enforcement agency's checkpoint program had an appropriate primary purpose, we reverse.
When reviewing a trial court's ruling on a motion to suppress, the appellate court follows three fundamental principles.
First, when a motion to suppress is heard by the trial judge, that judge sits as the trier of facts. The trial judge hears the evidence, and his findings based upon conflicting evidence are analogous to the verdict of a jury and should not be disturbed by a reviewing court if there is any evidence to support them. Second, the trial court's decision with regard to questions of fact and credibility must be accepted unless clearly erroneous. Third, the reviewing court must construe the evidence most favorably to the upholding of the trial court's findings and judgment. These principles apply equally whether the trial court ruled in favor of the State or the defendant.
So viewed, the evidence shows that on March 14, 2009, Charales was arrested and charged with DUI less safe and DUI per se following his inability to properly perform field sobriety tests at a checkpoint implemented by the Atlanta Police Department (" APD" ). With Charales's consent, police administered two Intoxilyzer 5000 tests,
which indicated blood alcohol levels of 0.206 and 0.215. Charales was charged with DUI per se and DUI less safe. Prior to trial, he filed a motion to suppress, arguing that the checkpoint was unlawful and the police failed to timely read him the implied consent notice, and the trial court denied the motion after an evidentiary hearing. Following [329 Ga.App. 535] a stipulated bench trial, the trial court found Charales guilty on both counts, and it merged the less safe count into the per se count. The trial court denied Charales's subsequent motion for new trial, and this appeal followed.
1. Charales argues that the trial court erred by denying his motion to suppress because the State failed to prove that the APD's checkpoint was lawful. We agree.
" [W]here a defendant challenges his initial stop at a police checkpoint by way of a motion to suppress, the State bears the burden of proving that the seizure was constitutional."  In Brown v. State, the Supreme Court of Georgia reaffirmed the five requirements that the State must show for a checkpoint to be upheld as constitutional as required by the United States Supreme Court in LaFontaine v. State :
(1) the decision to implement the [checkpoint] was made by supervisory personnel rather than the officers in the field; (2) all vehicles [were] stopped as opposed to random vehicle stops; (3) the delay to motorists [was] minimal; (4) the [checkpoint] operation [was] well identified as a police checkpoint; and (5) the " screening" officer's training and experience [was] sufficient to qualify him to make an initial determination as to which motorists should be given field tests for intoxication.
In addition, in City of Indianapolis v. Edmond, the United States Supreme Court " supplemented LaFontaine 's test for evaluating the implementation and operation of the particular checkpoint with a distinct requirement focused on the law enforcement agency's checkpoint program." 
At a minimum, the State must show that the law enforcement agency's checkpoint program had an appropriate primary purpose other than ordinary crime control -- a purpose examined at that programmatic level, rather than by trying [329 Ga.App. 536] to determine the motives of the supervisor who implemented and the officers who conducted the particular checkpoint at issue.
In this case, pretermitting whether the checkpoint established by the APD met the five LaFontaine requirements, the State has failed to prove that the checkpoint program had an appropriate primary purpose.
Sergeant Zachery Wilson testified at the suppression hearing that he, acting as a field supervisor, called for the checkpoint that evening where Charales was stopped and arrested. According to Sergeant Wilson, the purpose of that particular checkpoint was not crime suppression, but rather to " check for driver's license[s], seat belts[, headlights,] and safety violations." There was, however, no testimony nor any written evidence admitted regarding the APD's checkpoint policy or
program as a whole. As the Supreme Court of Georgia recently explained,
a finding that a particular checkpoint has a primary purpose other than ordinary crime control is not enough to satisfy the Edmond requirement. Edmond requires an examination of the policy purpose of the checkpoints, viewed at the programmatic level, to ensure that an agency's checkpoints are established primarily for a lawful and focused purpose like traffic safety rather than to detect evidence of ordinary criminal wrongdoing.
Because the State failed to show that the APD's " 'checkpoint program had an appropriate primary purpose other than ordinary crime control' when viewed at the programmatic level[,] ... we therefore must conclude that the checkpoint at which [Charales] was stopped violated the Fourth Amendment."  Thus, the trial court erred by denying Charales's motion to suppress.
2. Based on our holding in Division 1, we need not address Charales's second enumeration.
Miller and Dillard, JJ., concur.