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State v. Jacobs

Court of Appeals of Georgia, Fourth Division

August 2, 2017

THE STATE
v.
JACOBS.

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

          Dillard, Chief Judge.

         The State appeals the trial court's grant of Kevin Jacobs's motion to suppress breath-test evidence obtained when he was arrested for, inter alia, driving under the influence of alcohol. On appeal, the State argues that the trial court erroneously suppressed the breath-test evidence based on a finding that the manner in which the arresting officer read the implied-consent notice would lead a reasonable person to mistakenly believe that they had no right to refuse testing. For the reasons set forth infra, we reverse.

         The facts relevant to this appeal are undisputed.[1] On February 18, 2016, at approximately 1:30 a.m., a police officer with the DeKalb County Police Department was on patrol when he observed a vehicle approach a red light, drive past the "stopping line, " and stop in the middle of a crosswalk. Based on these observations, the officer activated his emergency lights and immediately initiated a traffic stop of the vehicle. The officer first asked the driver, Jacobs, for his driver's license, and he complied. While the officer was speaking with Jacobs, he appeared to be confused, and "he had some slurred speech . . . ." The officer then asked Jacobs if he had consumed any alcoholic beverages before driving, and Jacobs responded that he had two alcoholic drinks at a nearby club.

         The officer then walked back to his car to confirm that Jacobs's license was valid, and when he returned, the officer "smelled a very strong odor of cologne" that he did not smell previously. At this point, the officer also observed an open bottle of liquor in the front passenger seat of the car. When he questioned Jacobs about the bottle, Jacobs responded that he had been "drinking . . . with [his] boys." The officer then asked if Jacobs would submit to any field-sobriety tests, but he refused to do so. Based on his experience, training, and observations of Jacobs, the officer believed that Jacobs "wasn't able to drive safely." The officer then asked Jacobs to exit the vehicle, and when he did so, the officer observed Jacobs swaying like he was trying to catch his balance. Thereafter, the officer took Jacobs into custody, placed him in the backseat of the patrol car, and read him the implied-consent notice for ages 21 and older. The officer asked Jacobs to "designate" whether he wanted to submit to a State-administered test of his blood, breath, urine, or other bodily substance for the purposes of determining whether he was under the influence of alcohol or drugs, and Jacobs agreed to take a breath test.

         Subsequently, Jacobs was charged, via accusation, with driving under the influence per se, driving under the influence less safe, improper parking, and open container. Jacobs filed a motion to suppress the results of his breath test, arguing that his consent to the test was obtained by coercion. Following a hearing on the motion, the trial court granted it. This appeal by the State follows.[2]

         In reviewing the denial of a motion to suppress, an appellate court generally must "(1) accept a trial court's findings unless they are clearly erroneous, (2) construe the evidentiary record in the light most favorable to the factual findings and judgment of the trial court, and (3) limit its consideration of the disputed facts to those expressly found by the trial court."[3] But we review de novo "the trial court's application of law to the undisputed facts."[4] Thus, when, as here, the facts are undisputed, [5] we owe no deference to the trial court's legal conclusions.[6] Bearing these guiding principles in mind, we turn now to the State's specific claim of error.

         In its sole enumeration of error, the State argues that the trial court erred in suppressing the results of Jacobs's breath test based on its findings that the officer failed to designate the specific test for which he was requesting consent and that the way in which the officer read the implied-consent notice to Jacobs improperly asked him to choose one of the available chemical tests instead of asking him whether he would consent to a test in the first place. We agree.

         Here, it is undisputed that before a breath test was administered to Jacobs, the arresting officer read Georgia's implied-consent statute for suspects who are 21 years old or older almost verbatim. Specifically, at the suppression hearing, the officer testified that he read the following notice to Jacobs:

Georgia law requires you to submit to State-administered chemical tests of your blood, breath, urine, or other bodily substances for the purpose of determining if you are under the influence of alcohol or drugs.
If you refuse this testing, your Georgia driver's license or privilege to drive on the highways of this state will be suspended for a minimum period of one year. Your refusal to submit to the required testing may be offered into evidence against you at trial.
If you submit to testing and the results indicate an alcohol concentration of 0.08 grams or more, your Georgia driver's license or privilege to drive on the highways of this state may be suspended for a minimum period of one year.
After first submitting to the required state tests, you are entitled to additional chemical test of your blood, breath, urine, or other bodily substances at your own expense and from qualified personnel of your own choosing.
Will you submit to the State-administered chemical test of your designated-designate which one under the Implied Consent Law?[7]

         And when asked which specific test the officer asked to conduct, he testified that he allowed Jacobs the option of which test to take, and Jacobs agreed to breath test.

         Based on the foregoing, the trial court found that Jacobs's consent was invalid because the way in which the officer read the question at the end of the implied-consent notice "would tend to lead a reasonable person to respond with one of the options . . . rather than agree to or refuse all possible testing." But instead of citing any legal authority to support such a conclusion, the trial court merely distinguished the cases relied upon by the State. Ultimately, the trial court found that the officer in this case violated the implied-consent statutes in two ways: (1) by failing to designate any particular test to be conducted; ...


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