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Oh v. State

Court of Appeals of Georgia, Third Division

May 14, 2018



          Bethel, Judge.

         Yeong Sik Oh appeals from his conviction on one count of driving under the influence of alcohol. He argues that the trial court erred by denying his motion to suppress evidence from a traffic stop because the officer conducting the stop did not advise him of his Miranda rights before he made incriminating statements and submitted to a portable breathalyzer test, because his arrest was made without probable cause, and because the officer failed to obtain his consent to perform an alcohol breath test following his arrest. For the reasons set forth below, we find no error in the trial court's denial of Oh's motion to suppress and affirm his conviction.

On appeal from a ruling on a motion to suppress, we defer to the trial court's factual findings and credibility determinations, but review de novo the court's application of the law to the undisputed facts. And significantly, to the extent that the controlling facts are undisputed because they are plainly discernable from the patrol car-mounted video recording as they are in this case, we review those facts de novo. Although we owe substantial deference to the way in which the trial court resolved disputed questions of material fact, we owe no deference at all to the trial court with respect to questions of law, and instead, we must apply the law ourselves to the material facts. This includes legal determinations based upon the totality of the circumstances.

State v. Depol, 336 Ga.App. 191, 191-92 (784 S.E.2d 51) (2016) (citations and punctuation omitted).

         In this case, the evidence presented at the suppression hearing, including video and audio recorded from a police car patrol camera, showed that in the early morning hours of December 31, 2015, Oh was driving his vehicle when he was stopped by a police officer who had noticed that a brake light was malfunctioning. The officer followed Oh's vehicle for a short distance and then initiated his blue lights, which prompted Oh to pull his vehicle into a nearby parking lot. The officer had not observed any evidence of impairment at that point, and other than the failing brake light had not observed any other traffic violations.

          The officer approached the driver's side of the vehicle and began speaking with Oh. During that conversation, the officer told Oh that he smelled burned marijuana coming from the vehicle. Oh replied that he had smoked marijuana in the vehicle a few days before. The officer asked Oh to exit his vehicle and had him stand behind the car until a backup officer arrived. At that point, the officer planned to search the car based on the marijuana he had smelled. In response to a question from the officer, Oh denied that he had consumed alcohol that evening.

         Later, while Oh was standing outside the vehicle, the officer smelled alcohol on Oh's breath. Oh again denied that he had been drinking but then admitted to the officer that he had consumed one beer about an hour earlier in the evening with a meal. At that time, the officer also observed that Oh's eyes were red and watery.

         The officer commenced a DUI investigation of Oh. The officer explained each of the evaluations he was going to ask Oh to participate in and asked if Oh had any physical or medical conditions that would prevent him from participating. Oh indicated that he was able to participate and did not mention any physical concerns.

         The officer had Oh perform a battery of standardized field sobriety tests, beginning with a horizontal gaze nystagmus (HGN) test. The officer observed six out of six clues on the HGN test, consistent with conditions of impairment. The officer then instructed Oh to take a test in which he was instructed to take nine steps with his arms to his side and then turn around (the "walk and turn"). The officer demonstrated the actions he was asking Oh to perform before instructing Oh to proceed. The officer noted that Oh took ten steps instead of nine, failed to keep his balance during the instructional phase of the test, made an improper turn, and had to use his arms to maintain his balance. The officer testified that observing two or more of these clues during a walk and turn indicates impairment. The officer then asked Oh to stand on one leg, which he demonstrated for Oh. Oh performed this test without signaling any clues of impairment.

         Based on the preliminary sobriety tests, the officer told Oh that he believed he was impaired due to alcohol consumption and offered him a portable breath test (PBT). The officer then accused Oh of lying about the amount of alcohol he had consumed that evening, asking him whether he had in fact consumed more alcohol than he initially claimed. Oh initially denied that he had lied to the officer or consumed more alcohol than he claimed, but he later admitted that he had consumed four beers earlier in the evening. After some discussion, Oh blew into the PBT, which generated, according the officer, a "really high number." The officer testified that he did not believe the test was accurate because "[i]t was an absurd number, like alcohol- poisoning kind of number." Based on his belief that the initial test was not consistent with his observations of Oh, the officer asked Oh to blow into the device a second time, which yielded a positive test for alcohol. The officer later testified that Oh's behavior and responses to the field sobriety tests were more consistent with consumption of four beers than a single beer.

         Based on these observations, the officer placed Oh under arrest. The officer then read the Georgia Implied Consent Notice for Subjects Age 21 and Over to Oh and asked whether he consented to a breath test. Oh asked several questions about the warning and asked the officer to read it again, which prompted the officer to again read the consent warning to Oh and ask if he would submit to a breath test. The officer also accused Oh of stalling. Several minutes later, after asking additional questions, Oh provided his consent for the breath test. Oh submitted to the breath test at police headquarters, the results of which were consistent with the evidence of impairment the officer had observed during the traffic stop. Oh did not request an additional test. The officer described his encounter with Oh as "pleasant" and noted that he had not had to raise his voice with Oh during the stop. The officer also testified that he never told Oh that he had to take the breath test. His testimony was consistent with the conversation recorded by the dashboard camera.

          Oh was charged with one count of DUI less safe[1] and one count of DUI per se (driving with unlawful alcohol concentration).[2] Oh moved to suppress all evidence from the traffic stop, claiming violations of his Fourth, Fifth, and Sixth Amendment rights. The trial court denied Oh's motion. Following a bench trial, Oh was acquitted of the DUI less safe charge but was convicted of DUI per se. This appeal followed.

         1. Oh first argues that he was in custody when he provided breath samples into the PBT and admitted to consuming four beers. He argues that because he had not received a Miranda warning from the officer before providing the breath samples or making those statements, that evidence should be suppressed. We disagree.

An individual must be advised of his Miranda rights, including his right against self-incrimination, only after being taken into custody or otherwise deprived of his freedom of action in any significant way. Alco-sensor and other field sobriety tests given to a person under custodial arrest are inadmissible where administration of the tests has not been preceded by a Miranda warning. Although a motorist is deprived of his freedom of action during a traffic stop, such a deprivation does not always trigger the rights set forth in Miranda. Instead, the test for determining whether a person is 'in custody' at a traffic stop is if a reasonable person in the suspect's position would have thought the detention would not be temporary. ...

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