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MaCmaster v. State

Court of Appeals of Georgia, First Division

January 10, 2018

MACMASTER
v.
THE STATE.

          BARNES, P. J., MCMILLIAN and MERCIER, JJ.

          Barnes, Presiding Judge.

         A 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.[1] 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.

          For the reasons discussed below, we discern no error by the trial court in its rulings and therefore affirm.

         1. MacMaster contends that the trial court erred in denying her motion in limine in several respects.[2]

         In 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.

         In the 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.

         When 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 been drinking.

         Based 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.

         Based 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.

         The 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.

         MacMaster 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.

         The 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 ...


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