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 ...