DUI. Fayette State Court. Before Judge Thompson.
Jamie K. Inagawa, Solicitor-General, Joseph B. Myers, Jr., Assistant Solicitor-General, for appellant.
Manning, Levine & Marlow, Cindy S. Manning, for appellee.
BARNES, Presiding Judge. Boggs and Branch, JJ., concur.
Barnes, Presiding Judge.
The State appeals fro the order of the trial court granting Denise Barnes' motion to suppress the results of her state-administered breath test following her arrest for driving under the influence of alcohol to the extent it was less safe for her to drive [331 Ga.App. 632] (" DUI" ). See OCGA § 40-6-391 (a) (1). The
State contends that the trial court erred in finding that after being read the implied consent notice, Barnes had clearly refused to take the state-administered breath test and had not later rescinded her refusal. It further contends that the trial court erred in finding that Barnes did not rescind her refusal by voluntarily taking the breath test at the police station. For the reasons discussed below, we remand the case to the trial court for further proceedings.
When reviewing a trial court's ruling on a motion to suppress, we apply the following 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.
(Citations and punctuation omitted.) Brown v. State, 293 Ga. 787, 803 (3) (b) (2) (750 S.E.2d 148) (2013). To that end, " we owe no deference to the trial court's conclusions of law" and are instead " free to apply anew the legal principles to the facts." (Citation and punctuation omitted.) Martin v. State, 316 Ga.App. 220 (729 S.E.2d 437) (2012).
The record demonstrates that after midnight on August 30, 2012, a Peachtree City police officer initiated a stop of Barnes' vehicle after observing her vehicle " swerve to the right, almost striking the curb." While speaking to Barnes, the officer noticed that her eyes were red and glassy and the officer could " smell the odor of an alcoholic beverage coming from her breath." Barnes consented to performing field sobriety tests, and the officer also attempted to administer a portable breath test at the scene but was unable to obtain a reading. Based upon the results of her investigation, the officer placed Barnes under arrest for DUI to the extent she was a less safe driver. At that point, the officer read Barnes the implied consent notice, and asked if she consented to a state-administered test of her [331 Ga.App. 633] breath. Barnes told the officer that she did not understand, and the officer read her the notice a second time.
During the second reading of the implied consent notice, the officer misread the notice and stated that if Barnes " submitted to the test and the results indicated an alcohol concentration of . 0 grams or more, her driver's license could be suspended for more than a year." At the end of the second reading of the notice, Barnes responded, " No, I thought I just did that." Another officer then explained that the portable breath test was different from the test referenced in the implied consent notice, and Barnes responded, " Oh, okay." The arresting officer testified at the motion to suppress hearing that she interpreted the " oh, okay" as Barnes' rescission of her refusal and acquiescence to the breath test. The officer testified that later at the police station before Barnes took the breath test she explained to Barnes that " this is the state administered test that you agreed to take" and Barnes had thereafter taken the test.
In its order granting Barnes' motion to suppress, the trial court found that Barnes had clearly refused ...