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State v. Smith

Court of Appeals of Georgia

November 14, 2014

THE STATE
v.
SMITH

DUI, etc. Cobb State Court. Before Judge Lake.

Barry E. Morgan, Solicitor-General, Diana M. Simmons, Assistant Solicitor-General, for appellant.

Frye Law Group, Kimberly K. Frye, for appellee.

DOYLE, Presiding Judge. Dillard, J., concurs. Miller, J., concurs in judgment only.

OPINION

Page 788

Doyle, Presiding Judge.

James Smith was charged with driving under the influence of alcohol to the extent that it was less safe for him to drive (" DUI less safe" )[1] and failure to maintain his lane.[2] Following a hearing,[3] the trial court suppressed the results of two field sobriety tests because [329 Ga.App. 647] they were not properly administered.[4] The State appeals,[5] and we reverse for the reasons that follow.

We apply the following principles when reviewing a trial court's ruling on a motion to suppress:

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.[6]

" When the controlling facts are not in dispute, such as facts discernible from a videotape, we conduct a de novo review of both the facts and the law in determining the admissibility of the statement." [7]

So viewed, the record shows that on January 31, 2013, Kennesaw Police Department Detective Michael Maynard initiated a traffic stop after he observed Smith's vehicle weave, cross the center line multiple times, strike the right curb, and travel partly off of the roadway. Detective Maynard called for backup and then approached the vehicle and spoke to Smith, at which point he detected

Page 789

the odor of alcohol emanating from Smith's breath. Detective Maynard then returned to his vehicle to await Officer J. C. Ferguson, who arrived on the scene shortly thereafter, at approximately 12:45 a.m.

While speaking with Smith, Officer Ferguson detected the odor of alcohol coming from Smith and noticed that Smith's eyes were bloodshot and watery, he mumbled, and his speech was slurred. When asked whether he had been drinking, Smith replied that he was coming from a business meeting and had consumed two glasses of wine and two beers, the last one at 11:00 p.m. Smith then complied [329 Ga.App. 648] ...


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