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Hynes v. State

Court of Appeals of Georgia, Fourth Division

May 31, 2017

HYNES
v.
THE STATE.

          DILLARD, P. J., RAY and SELF, JJ.

          Self, Judge.

         James Hynes was charged with failure to maintain lane, driving under the influence of alcohol (DUI) less safe, and DUI per se. He filed a motion to suppress the results of a blood test administered pursuant to a search warrant. Following a hearing, the trial court denied the motion. We granted Hynes's application for interlocutory appeal, and after reviewing the record and hearing transcript, we affirm for the reasons set forth below.

         The evidence in this case shows that on April 6, 2016, a deputy with the Cherokee County Sheriff's Office observed Hynes weaving across the center line of Bells Ferry Road. The deputy conducted a traffic stop and smelled a "heavy odor of alcohol" on Hynes's breath. During his conversation with the deputy, Hynes first stated he had consumed "zero" alcohol, but later admitted to drinking two glasses of wine. Hynes refused to participate in field sobriety testing, but eventually let the officer perform the horizontal gaze nystagmus test, in which Hynes exhibited all six indicators. The deputy placed Hynes under arrest, read the implied consent notice for drivers over the age of 21, and then asked Hynes if he would submit to a blood test. Hynes refused the state-administered test, but stated that he would "do an independent test." The deputy obtained and executed a search warrant for a blood test. The deputy testified that he did not permit Hynes to obtain an independent test because "he refused implied consent."

         The transcript of the hearing on the motion to suppress includes the following colloquy between the State and the deputy:

Q: What was his answer to the implied consent card?
A: He refused State testing.
Q: Did he ever ask for an independent test?
A: He never directly asked for one, no.
Q: Okay. Did you take him to get an independent test?
A: I did not, as he refused implied consent.

         Later, the following exchange occurred between Hynes's attorney and the deputy:

Q: Now, let's talk about after you arrest him and you read him implied consent, he tells you in response that he'll do an independent test, is that right?
A: Uh-huh. . . Yes, ma'am, he does.
Q: And do you recall hearing him on the video say, you asked him to confirm, you will do an independent test? Do you remember asking him that?
A: Yes, I believe that's on the video.
Q: And he responded, yes. Is that right?
A: He said he would do an independent test, yes, ma'am.
Q: Okay. At any point thereafter was a test administered in this case?
A: A test was administered after a search warrant was completed.
Q: Okay. And what kind of test was that?
A: It was a blood test.
Q: All right. And after the blood test was administered, was there any effort made to ...

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