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Bostic v. State

Court of Appeals of Georgia

June 25, 2015

BOSTIC
v.
THE STATE

DUI. Laurens Superior Court. Before Judge Gillis.

Natalie K. Glaser, for appellant.

L. Craig Fraser, District Attorney, Cheryl A. Banks, Assistant District Attorney, for appellee.

BRANCH, Judge. Andrews, P. J., and Miller, J., concur.

OPINION

Page 176

Branch, Judge.

Perry Bostic appeals from an order of the Laurens County Superior Court denying Bostic's motion to suppress the results of his alcohol breath test, which were obtained following Bostic's arrest for DUI less safe.[1] Specifically, Bostic contends that the trial court erred [332 Ga.App. 605] in finding that police had probable cause to arrest him for DUI. We agree and therefore reverse the order of the trial court.

The evidence in this case was uncontested and consisted of the testimony of the arresting officer and a videotape of the traffic stop of Bostic's car and his subsequent arrest. Moreover, on appeal Bostic does not dispute any factual findings made by the trial court in its order denying his motion to suppress. Rather, he contends that the trial court erred as a matter of law in finding that these facts provided probable cause to arrest Bostic for DUI. Accordingly, because there are no disputed facts, we review de novo the trial

Page 177

court's application of the law to those facts. Williams v. State, 318 Ga.App. 715 (734 S.E.2d 535) (2012). See also Silva v. State, 278 Ga. 506, 507 (604 S.E.2d 171) (2004).

The record shows that Michael Talbott, an officer with the Dublin Police Department, observed a car driven by Bostic with the license plate partially obscured by the frame surrounding the tag.[2] Talbott therefore initiated a traffic stop of the vehicle. Upon making contact with Bostic, Talbott noticed that Bostic's eyes were bloodshot and watery, so the officer asked Bostic if he had been drinking. Bostic responded that he had consumed one beer approximately one hour earlier. In response to further questions from Talbott, Bostic admitted that his driver's license was currently suspended as a result of a previous DUI charge. The officer then asked Bostic if he would be willing to " take some tests," and Bostic agreed. Talbott had Bostic exit his vehicle and walk to Talbott's patrol car where Talbott administered an alco-sensor test, which showed that alcohol was present on Bostic's breath. Talbott did not conduct any field sobriety tests because, as best he could recall, he was not certified at that time to conduct such tests.

Based on Bostic's admission that he had consumed a beer earlier in the evening, the appearance of his eyes, and the positive alco-sensor test, Talbott arrested Bostic for DUI less safe. Talbott then read Bostic Georgia's implied consent notice[3] and after being asked [332 Ga.App. 606] three times, Bostic agreed to submit to an alcohol breath test. The results of that test showed that Bostic had a blood alcohol level above the legal limit.

Bostic was subsequently indicted for improper display of license plate, driving without a license, DUI per se, and DUI less safe to drive. Prior to trial, Bostic filed a motion to suppress the results of his alcohol breath test on the grounds that ...


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