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Diaz v. State

Court of Appeals of Georgia, Second Division

January 23, 2018


          MILLER, P. J., DOYLE, P. J., and REESE, J.

          Reese, Judge.

         A jury found Robert Diaz guilty of homicide by vehicle in the first degree, driving under the combined influence ("DUI") of drugs to the extent that it was less safe for him to drive, and failure to maintain a lane.[1] He appeals from the judgment on his convictions, arguing that the trial court erred in admitting the results of a state-administered blood test, his statement to a law enforcement officer, and evidence that he was impaired by drugs on days other than the date of the collision at issue. For the reasons set forth, infra, we affirm.

         Viewed in the light most favorable to the trial court's rulings on the motions to exclude the evidence at issue, [2] the record reveals the following facts. On the evening of May 24, 2014, the Appellant, while driving a white Toyota Tundra pickup truck, drove through a neighbor's yard and over the neighbor's mailbox. The Appellant walked to the front door of the house while carrying the mailbox and told the neighbor that he was sorry and was going to buy him a new mailbox. According to the neighbor, the Appellant was crying and "jittery, " his eyes were red, and he asked the neighbor not to tell his (the Appellant's) wife what had happened. After the Appellant left, the neighbor called 911 and reported the incident.

         At approximately 9:55 p.m. the same evening, a Georgia State Patrol trooper, Glen Hand, was driving to work when he came upon an accident scene involving a white Toyota Tundra pickup truck and a Hyundai automobile. He reported the accident to the dispatcher and asked for assistance by police and emergency personnel. Trooper Hand then went to the pickup truck, which was lying on its driver's side in the middle of the road. The driver of the pickup truck, later identified as the Appellant, was moaning and unable to get out of the truck. Emergency responders arrived, extracted the Appellant from the truck, and placed him on a stretcher. At that point, Trooper Hand asked the Appellant for identifying information so he could inform the Appellant's family about the collision. The Appellant said that he did not want Trooper Hand to contact his (the Appellant's) family. According to the officer, the Appellant had "thick tongue type speech" that was slow and "slurred, " but the Appellant appeared to understand the officer's questions and was able to tell the officer his address and where he had been coming from at the time of the collision. The emergency responders then transported the Appellant to the Atlanta Medical Center for treatment of his injuries.

         While Trooper Hand assisted at the accident scene, he learned that the driver of the Hyundai had died of injuries from the collision. Further, an eyewitness told Trooper Hand that he had seen the Appellant's truck "all over the road" before the vehicles collided head-on in the other driver's lane. Another officer also notified Trooper Hand that, shortly before the collision, someone had called 911 to report that the driver of a Toyota Tundra pickup truck had driven through the caller's yard, run over a mailbox, and appeared to be impaired.

         After leaving the accident site, Trooper Hand drove to the Atlanta Medical Center to conduct a further investigation of the collision. The Appellant was in the emergency department and had already received a CT scan and medications for pain and nausea when Trooper Hand arrived. A registered nurse was also in the Appellant's room. Trooper Hand re-introduced himself and told the Appellant that he was there to investigate the collision and was going to read him the implied consent notice. According to the officer, the Appellant was alert and appeared to understand what was being said, and, when the Appellant asked about the other driver and learned that he had died in the collision, the Appellant "teared up." Then, before the officer read the implied consent notice or questioned the Appellant, the Appellant stated that he had self-administered methadone earlier in the day and that there was possibly some other "stuff" in his system.[3] The officer did not ask any follow-up questions about the Appellant's statement.

          Trooper Hand read the Appellant the implied consent notice while the registered nurse was still present in the room.[4] In addition, the officer asked the Appellant to sign an official voluntary consent form authorizing a blood test, and the Appellant signed the form in the officer's presence. Trooper Hand testified that the Appellant did not say anything or display any conduct that indicated that he was unable to consent to the blood test or that his consent was not given freely and voluntarily.[5] After the Appellant signed the consent form, the nurse drew a blood sample from him, and the sample was sent to the Georgia Bureau of Investigation's Division of Forensic Sciences (hereinafter, "state crime lab") to be tested for alcohol and drugs.

         According to a forensic toxicologist employed by the state crime lab, the Appellant's blood test results showed that he had methadone and Clonazepam (benzodiazepine) in his system. The toxicologist testified that Clonazepam is a central nervous system depressant that causes sedation, drowsiness, slow movement, mental clouding, and distractability, among other things, and is prescribed to treat anxiety and insomnia. On the other hand, methadone is a narcotic analgesic or pain killer that is often used in the treatment of people who are addicted to opioids and other pain medications. The forensic toxicologist testified that methadone also has some central nervous system depressant effects and, when combined with Clonazepam, the sedative effect on a person's brain is exaggerated, although the person could also experience a "euphoria" or a "high that is comparable to heroin" when combining the drugs.

         An investigation and accident reconstruction conducted by law enforcement officers revealed that, at 9:52 p.m., the Appellant's pickup truck crossed into the opposite lane of traffic and collided head-on with the Hyundai. Based upon the results of the investigation and the blood test results, the Appellant was arrested and charged with homicide by vehicle, DUI, and failure to maintain a lane.

         In addition to the above evidence, the State presented evidence during the Appellant's jury trial that the Appellant had been receiving daily methadone treatment for opiate addiction for several months prior to the collision at issue. The health care provider who treated the Appellant on the day of the collision testified that, at 10:09 a.m., the Appellant ingested 40 milligrams of methadone. She also gave him two 40-milligram doses for him to self-administer during the next two days. According to a physician employed by the methadone clinic, the Appellant never informed the clinic that he was also taking Clonazepam (benzodiazepine) that had been prescribed by another physician.

         Further, the physician who had prescribed Clonazepam for the Appellant in April and May 2014 testified that he always asks his patients if they are taking any other medications, and the Appellant never told him that he was undergoing daily methadone treatment. The physician testified that, if he had known the Appellant was taking methadone daily, he would not have given him a benzodiazepine prescription. The physician explained that clinics that provided methadone treatment explicitly prohibited their patients from taking any other controlled substances with a potential for abuse, such as benzodiazepine. Another reason he did not prescribe benzodiazepine in such situations was because combining a narcotic pain medication, such as methadone, with benzodiazepine could result in "additive or synergistic effects, " such as sedation, confusion, and addiction. In addition, the physician testified that he always warns his patients who are taking benzodiazepine that they should not drive after taking the medication because they could be impaired and, as a result, charged with DUI. In fact, for this reason, he specifically changed the Appellant's prescription for Clonazepam so that he was only supposed to take it at night.

          Finally, the State presented evidence that the Appellant had previously driven his truck while he appeared to be under the influence of alcohol or drugs, [6] and that, on one of those occasions, he hit a parked car in a shopping center parking lot.[7] The State also showed the jury video-recordings of the Appellant taken by a family member a few hours before the collision in this case; the recordings appeared to show that the Appellant was impaired.[8]

         Following the jury's guilty verdicts on all three charges, the trial court sentenced the Appellant to serve 16 years in prison. On appeal from his convictions, the Appellant argues that the trial court improperly admitted several items of evidence that he claims were illegally obtained, irrelevant, and/or unduly prejudicial. He contends that, if such evidence had not been admitted, the remaining evidence would have been insufficient to support the jury's verdict and, as a result, his convictions must be reversed. We disagree.

On appeal from a criminal conviction, we view the evidence in the light most favorable to the verdict and an appellant no longer enjoys the presumption of innocence. This Court determines whether the evidence is sufficient under the standard of Jackson v. Virginia, [9] and does not weigh the evidence or determine witness credibility. Any conflicts or inconsistencies in the evidence are for the jury to resolve. As long as there is some competent evidence, even though contradicted, to support each fact necessary to make out the State's case, we must uphold the jury's verdict.[10]

         The standard of Jackson v. Virginia, [11] is met if the evidence is sufficient for any rational trier of fact to find the defendant guilty beyond a reasonable doubt of the crime charged.[12]

         Further, when the facts that are material to a decision on a motion to suppress are disputed,

it generally is for the trial judge to resolve those disputes and determine the material facts. This principle is well established, and our Supreme Court has identified three corollaries of the principle, which limit the scope of review in appeals from a grant or denial of a motion to suppress in which the trial court has made express findings of disputed facts. 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. Moreover, an appellate 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. And we review de novo the trial court's application of law to the undisputed facts.[13]

         Similarly, when reviewing a trial court's ruling on the admissibility of an incriminating statement by the defendant, we affirm the trial court's finding that the defendant made the statement freely and voluntarily unless such finding is clearly erroneous.[14] And, as to the court's decision to admit other evidence, we generally review the ruling to determine if it constitutes an abuse of discretion.[15] With these guiding principles in mind, we turn now to the Appellant's specific claims of error.

         1. The Appellant contends that the trial court erred in failing to suppress the results of the state-administered blood test, arguing that the results were obtained through an unlawful search and seizure and that he did not knowingly and voluntarily consent to the test.

A suspect's right under the Fourth Amendment [to the United States Constitution] to be free of unreasonable searches and seizures applies to the compelled withdrawal of blood, and the extraction of blood is a search within the meaning of the Georgia Constitution.[16] In general, searches are of two types: those conducted with a search warrant or those undertaken without one, and searches conducted outside the judicial process are per se unreasonable under the Fourth Amendment, subject only to a few specifically established and well-delineated exceptions. Thus, a warrantless search is presumed to be invalid, and the State has the burden of showing otherwise.[17]

         It is well settled that "one of the specifically established exceptions to the requirements of both a warrant and probable cause is a search that is conducted pursuant to consent."[18] And, "when relying on the consent exception to the warrant requirement, the State has the burden of proving that the accused acted freely and voluntarily under the totality of the circumstances."[19]

         As shown above, Trooper Hand testified that, not only did he read the applicable implied consent notice[20] to the Appellant before the blood test was performed, he also obtained the Appellant's written consent to the test. The trial court conducted a hearing on the Appellant's motion to suppress the blood test results and denied the motion. The court found that Trooper Hand had read the implied consent notice to the Appellant; that, while the officer had probable cause to obtain the blood sample, the Appellant was not under arrest or in custody at the time of the test; that there was no evidence that the Appellant was in distress, pain, or shock or that he had any "physical issues" that affected his ability to consent to the blood test; and that the Appellant voluntarily gave written consent to the blood test. In making these findings, the court specifically found that the testimony of Trooper Hand and the registered nurse was credible, consistent, and uncontroverted. Because the Appellant challenges the validity of both the implied consent and his actual written consent, we address each issue in turn.

(a) Implied consent. OCGA § 40-5-55 (a) provides, in relevant part, as follows:
[A]ny person who operates a motor vehicle upon the highways or elsewhere throughout this state shall be deemed to have given consent, subject to Code Section 40-6-392, [21] to a chemical test or tests of his or her blood, breath, urine, or other bodily substances for the purpose of determining the presence of alcohol or any other drug, if arrested for any offense arising out of acts alleged to have been committed in violation of Code Section 40-6-391 or if such person is involved in any traffic accident resulting in serious injuries or fatalities.

         The Appellant argues that the State failed to prove that Trooper Hand read him the implied consent notice because the officer did not record in his police report that he had given the notice. During the motion to suppress hearing, however, Trooper Hand testified that it was his standard practice and procedure to read the implied consent notice to individuals suspected of DUI prior to obtaining a blood sample. He testified that he read the required notice to the Appellant, but he acknowledged that he had accidentally failed to document in his internal report to the supervising investigator that he had read the notice. Trooper Hand further explained that he specifically remembered the details of this case because of its "magnitude" and because he had grown up near the collision site and passed it every day on his way to work.

         Further, the nurse who obtained the Appellant's blood sample testified that she was in the room with the Appellant when the officer arrived and that, as a matter of her standard practices and procedures, she never drew a patient's blood for law enforcement purposes unless she had personally observed the requesting officer read the implied consent notice to the patient.

         Viewing the evidence in favor of the trial court's ruling, [22] we find no error in its conclusion that Trooper Hand read the Appellant the necessary implied consent notice before the blood sample was obtained. Moreover, even if Trooper Hand had, in fact, failed to read the implied consent notice, the Appellant's voluntary written consent[23] to the blood test eliminated the need for the officer to read the notice.[24]Thus, this alleged error lacks merit.

          (b) Actual written consent.

         As shown above, in addition to reading the implied consent notice, Trooper Hand also obtained the Appellant's actual written consent to the blood test. The Appellant argues that he did not give his actual consent knowingly or voluntarily because, at the time he signed the form, he was under the influence of pain medication administered to him in the emergency room, was in pain and in shock from his injuries, [25] and was upset upon learning of the other driver's death.

         As stated above, the determination of whether the Appellant knowingly and voluntarily gave actual consent to the blood test depends on consideration of the totality of the circumstances presented.[26]

A consent to search will normally be held voluntary if the totality of the circumstances fails to show that the officers used fear, intimidation, threat of physical punishment, or lengthy detention to obtain the consent. The trial court may also consider as factors in its analysis prolonged questioning, the accused's age, level of education, intelligence, and advisement of constitutional rights; and the psychological impact of these factors on the accused. Moreover, while knowledge of the right to refuse consent is one factor to be taken into account, the government need not establish such knowledge as the sine qua non of an effective consent. Instead, the court should consider whether a reasonable person would feel free to decline the officers' request to search or otherwise terminate the encounter.[27]

         In this case, the undisputed evidence shows that the Appellant had methadone and Clonazepam in his system at the time of the collision. In addition, during the almost three hours between the collision and the Appellant's signing of the consent form, the Appellant was transferred to Atlanta Medical Center and received an "x-ray and/or CT scan" and other tests, as well as medication, in the emergency room. Even so, the emergency room's medical records show that the Appellant was "oriented" and "obey[ed] commands" when he was examined at approximately 11:00 p.m. and when he was checked again five, thirty, and sixty minutes later.

         Trooper Hand testified that, when he spoke with the Appellant in the emergency room, the Appellant was alert and appeared to understand what was going on; the Appellant responded appropriately to questions; the Appellant asked him questions about the collision and the condition of the other driver; he (Trooper Hand) told the Appellant that the blood test was voluntary and did not threaten the Appellant or promise him anything in exchange for his written consent; and there was nothing that suggested to Trooper Hand that the Appellant was not able to consent or was not freely and voluntarily giving his consent to the blood test.

         Moreover, the nurse who obtained the Appellant's blood sample testified about the medications the Appellant received in the emergency room and their effects on a patient's system. The medical records showed that, at 11:17 p.m., he received Zofran for nausea and Fentanyl for pain, and that, at 11:35 p.m., he received a combination of succinylcholine ("SUX") and Propofol, which sedates and temporarily paralyzes the patient. According to the nurse, the SUX/Propofol combination was typically used to relax a patient's muscles in order to reposition a dislocated joint, and, based upon the amount given to the Appellant, the drugs' effects would last for only five to seven minutes. The nurse also testified that the hospital only gave enough Fentanyl to the Appellant to take "the edge off" the pain, and opined that most people would be "totally lucid" a few minutes after receiving the drugs in the amounts given to the Appellant. It is undisputed that Trooper Hand obtained the Appellant's written consent to the blood test at 12:38 a.m., over an hour after the hospital gave the Appellant the medications at issue.

          Finally, the forensic toxicologist from the state crime lab testified that only two drugs were found in the Appellant's blood sample: methadone and Clonazepam (benzodiazepine).[28] Thus, the medications administered in the emergency room were no longer detectable in the Appellant's blood at the time the blood sample was obtained, which was after he signed the written consent form.

         Given this evidence, we find no error in the trial court's conclusion that, under the totality of the circumstances, the Appellant freely and voluntarily consented to the blood test.[29]

          2. The Appellant claims that there was no probable cause to suspect that he was driving under the influence of drugs or alcohol at the time of the collision and, because he was not under arrest, Trooper Hand was not authorized to request the blood test.

         "[W]here an individual has been involved in a traffic accident resulting in serious injuries or fatalities [(as in the instant case)] and the investigating law enforcement officer has probable cause to believe that the individual was driving under the influence of alcohol or other drugs, . . . the ensuing search is both warranted and constitutional[, ]" regardless if the individual is under arrest at the time the implied consent notice is given under OCGA § 40-5-55 (a).[30]

The test of probable cause requires merely a probability -- less than a certainty but more than a mere suspicion or possibility. To authorize an arrest for DUI, an officer need only have knowledge or reasonably trustworthy information that the suspect was actually in physical control of a moving vehicle, while under the influence to a degree which renders him incapable of driving safely.[31]

         Pretermitting whether probable cause was necessary in this case, given the Appellant's actual written consent to the blood test, [32] the record shows that, at the time of the Appellant's collision, Trooper Hand had been a law enforcement officer for about fifteen years, which included four years as a member of the Georgia State Patrol's "Night Hawks DUI Task Force, " a specialized unit focused on impaired driving. In that capacity, Trooper Hand participated in over 400 traffic stops based on suspicion of impaired driving and was involved in numerous investigations of vehicular homicide.

         During the hearing on the motion to suppress, Trooper Hand testified that the Appellant's speech was "thick" and "slurred" after the emergency personnel removed him from the truck and placed him on the stretcher. In addition, Trooper Hand testified about the eyewitness' statement that the Appellant's truck was "all over the road" before it collided head-on with the Hyundai, as well as the information he received about a 911 call earlier that evening reporting that a possibly impaired person driving a Toyota Tundra pickup truck drove onto someone else's property and over a mailbox. And, finally, Trooper Hand testified about the Appellant's unprompted admission that he had self-administered methadone earlier that day and that there might be other drugs in his system.

         Under these circumstances, we conclude that the trial court was authorized to find that there was sufficient probable cause to support Trooper Hand's request for a ...

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