BARNES, P. J., MCMILLIAN and MERCIER, JJ.
Barnes, Presiding Judge.
Forsyth County jury found Alison MacMaster guilty of driving
under the influence of alcohol with an excessive
blood-alcohol concentration ("DUI per se"), driving
under the influence of alcohol to the extent it was less safe
for her to drive ("DUI less safe"), and failure to
maintain lane. On appeal from the denial of her motion
for new trial, MacMaster challenges the trial court's
denial of her motion in limine seeking to exclude evidence
that she consented to a State-administered breath test and
the results of that test. MacMaster also challenges the trial
court's denial of her motion in limine seeking to exclude
evidence that she refused to take a preliminary breath test.
Additionally, MacMaster argues that the trial court failed to
exercise its discretion and decide whether to grant a new
trial on the general grounds.
the reasons discussed below, we discern no error by the trial
court in its rulings and therefore affirm.
MacMaster contends that the trial court erred in denying her
motion in limine in several respects.
reviewing a trial court's ruling on a motion to suppress
or motion in limine, appellate courts construe the record in
the light most favorable to the trial court's factual
findings and judgment, and "all relevant evidence of
record, including evidence introduced at trial, as well as
evidence introduced at the motion to suppress hearing, may be
considered." (Citation, punctuation, and emphasis
omitted.) Pittman v. State, 286 Ga.App.
415, 416 (650 S.E.2d 302) (2007). See Price v.
State, 303 Ga.App. 859, 861 (1) (694 S.E.2d 712) (2010).
This means that the reviewing court generally must accept the
trial court's findings as to disputed facts unless they
are clearly erroneous, although the reviewing court may also
consider facts that definitively can be ascertained
exclusively by reference to evidence that is uncontradicted
and presents no questions of credibility, such as facts
indisputably discernible from a videotape.
(Citations and punctuation omitted.) State v. Allen,
298 Ga. 1, 2 (1) (a) (779 S.E.2d 248) (2015). Guided by these
principles, we turn to the record in this case.
early morning hours of August 12, 2016, a deputy with the
Forsyth County Sheriff's Office observed a black
Chevrolet Tahoe repeatedly fail to maintain its lane and
initiated a traffic stop. The deputy approached and made
contact with the sole occupant and driver, MacMaster, and
noted a strong odor of alcohol coming from her car that got
stronger every time she spoke. MacMaster admitted to having
consumed three beers in the last three hours at a local bar
and said that another patron had spilled beer on her.
MacMaster also claimed that her car was out of alignment and
that she was simply "not the best" driver. The
deputy asked to see MacMaster's driver's license, and
she handed it to him.
the deputy walked back to his patrol car to run a check on
MacMaster's license, a second deputy arrived on the
scene. After the first deputy informed the second deputy of
what he had observed on the roadway and during his
conversation with MacMaster, the second deputy took over the
investigation. The second deputy approached MacMaster, who
remained seated in her car. As he spoke with MacMaster, the
second deputy noted a strong odor of alcohol coming from her
car and saw that she had bloodshot, watery eyes, a flushed
face, and thick speech. MacMaster again admitted that she had
on his observations of MacMaster, the second deputy had
MacMaster step out of her car, noticed that she strongly
smelled of alcohol, and asked her if she would be willing to
perform a series of voluntary field sobriety tests. MacMaster
said that she would be willing to do so. After instructing
MacMaster, the second deputy had her perform the horizontal
gaze nystagmus ("HGN") test, the walk-and-turn
test, and the one-leg stand test. The second deputy observed
six out of six clues of impairment for the HGN test, six out
of eight clues for the walk-and-turn test, and three out of
four clues for the one-leg stand test. The second deputy also
asked MacMaster to recite the alphabet from E to U without
singing or rhyming the letters, but MacMaster sang and rhymed
some of the letters. Additionally, the second deputy asked
MacMaster if she would take a preliminary breath test on his
handheld Alco-Sensor device (the "Alco-Sensor
test"). MacMaster expressed that she was uncomfortable
with the Alco-Sensor test, and the second deputy treated her
response as a refusal.
on MacMaster's manner of driving, the strong odor of
alcohol, her bloodshot, watery eyes, her thick speech, her
admission to drinking, and her performance on the field
sobriety tests, the second deputy placed her under arrest for
DUI and failure to maintain lane. After arresting MacMaster,
the second deputy read her Georgia's implied consent
notice for suspects over the age of 21 and asked whether she
would agree to a State-administered test of her breath. When
MacMaster asked if she had a choice, the second deputy
explained that it was her choice to say yes or no. MacMaster
then agreed to take the test.
second deputy transported MacMaster to the Forsyth County
Detention Center for the State-administered breath test.
According to the second deputy, MacMaster never changed her
mind during the drive about taking the test. Once at the
detention center, MacMaster spoke with another deputy who was
certified to administer the breath test on the Intoxilyzer
9000 (the "certified administrator"). MacMaster
asked the certified administrator if she should take the
breath test on the machine, and the administrator explained
to her that she did not have to take it and that it was
voluntary. MacMaster then submitted to a breath test on the
Intoxilyzer, which returned blood-alcohol concentration
readings of 0.166 and 0.159. According to the certified
administrator, the Intoxilyzer was functioning properly and
in good working order when MacMaster was tested, no
components or parts were missing, the machine had passed its
periodic inspections, and diagnostic tests performed on the
machine that day revealed no problems.
was charged by accusation with DUI per se, DUI less safe, and
failure to maintain lane. She filed a motion in limine
seeking to exclude, on several constitutional grounds, the
admission of the results of the State-administered breath
test and any evidence of her consent to the
State-administered breath test and her refusal to take the
Alco-Sensor test. MacMaster argued that she had not
voluntarily consented to the State-administered breath test
and that her alleged consent had been procured before she had
been properly advised of her rights under Miranda v.
Arizona, 384 U.S. 436 (86 S.Ct. 1602, 16 L.Ed.2d 694)
(1966), and in violation of her constitutional right against
self-incrimination. MacMaster further argued that her refusal
to take the Alco-Sensor test was inadmissible because she had
a constitutional right to refuse to consent to a warrantless
search without having it introduced against her at trial.
trial court conducted a hearing on MacMaster's motion in
limine, where the two deputies on the scene of the traffic
stop and the certified administrator testified to events as
set out above, and the State introduced the dash-cam
recordings from the two deputies' patrol cars. After
hearing all the testimony and ...