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State v. Council

Court of Appeals of Georgia, Second Division

February 1, 2019


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

          Reese, Judge.

         This is the second appearance of this case before this Court. On October 30, 2017, we reversed the trial court's grant of the motion in limine filed by Susan Council ("the Appellee") to suppress the results of a breath test obtained after her arrest for driving under the influence ("DUI").[1] On May 21, 2018, the Supreme Court of Georgia granted the petition for a writ of certiorari filed by the Appellee and vacated our opinion stating "the case is remanded to the Court of Appeals for reconsideration by that Court in light of Division 1 of Caffee v. State[.[2]" Thus, Caffee pertains only to the facts in our analysis as to whether the Appellee voluntarily consented to the state-administered breath test. For the reasons set forth infra, we again reverse the trial court's grant of the Appellee's motion in limine to suppress the results of her breath test.

When reviewing the grant or denial of a motion to suppress, an appellate court must construe the evidentiary record in the light most favorable to the trial court's factual findings and judgment. An appellate court also generally must limit its consideration of the disputed facts to those expressly found by the trial court.[3]

         The Supreme Court of Georgia has made it clear that, upon review,

appellate courts must focus on the facts found by the trial court in its order, as the trial court sits as the trier of fact. An appellate court may, however, 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.[4]

         So viewed, the evidence presented at the suppression hearing, including the audio and video dashcam recordings from the patrol cars of responding police officers, showed the following indisputable facts.[5] On the evening of September 15, 2016, a multi-vehicle collision occurred involving the Appellee. A Cobb County police officer ("police officer") responded to the scene and spoke briefly with the Appellee. The Appellee refused medical treatment for her injuries, which included a bloody nose and lacerations on her hands. She expressed concern to the police officer, however, about the need to pick up her daughter from soccer practice.

         Although the police officer did not smell any odor of alcohol coming from the Appellee, other first responders at the scene told him that she smelled of alcohol. The police officer requested that a DUI Task Force Officer ("DUI officer") come to the scene.

         The police officer's dashcam recording shows that from the time of the collision until the DUI officer arrived on the scene, the Appellee had possession of her phone, and she walked around the accident scene and talked on her phone while she waited.

         When the DUI officer arrived at the scene, he briefly spoke with the police officer. Next, the DUI officer escorted the Appellee from her car to the front of his patrol car where he observed a strong odor of alcohol coming from the Appellee, that her eyes were bloodshot and watery, [6] and she had "communication issues."

         The DUI officer's dashcam recording showed that while walking to the DUI officer's patrol car, the Appellee's phone rang, and the DUI officer allowed her to answer it. After finishing the phone call, the Appellee handed her phone to the DUI officer, who placed it in the Appellee's purse before putting the purse on the hood of the patrol car. The DUI officer asked the Appellee if she had been drinking, and she admitted that she had consumed two glasses of wine at a birthday party that evening and gave no explanation for her failure to apply her brakes when she saw traffic stopping ahead.

         During the DUI investigation, the Appellee's boyfriend arrived at the accident scene. He told the police officer that the Appellee had called him to pick her up, but the officer refused to allow him to talk to the Appellee at that time because the area was an accident scene and the Appellee was being evaluated for DUI.

         At the DUI officer's request, the Appellee blew into a portable Intoxilyzer, which showed a positive response for alcohol. The Appellee initially agreed to participate in the Horizontal Gaze Nystagmus ("HGN") test, but then declined to perform the remaining evaluations after the DUI officer reminded her that those tests were voluntary evaluations to determine if she was safe to drive. She stated that she did not know her rights and said that she wished she could call "somebody" to come get her. The Appellee also spontaneously admitted to the DUI officer that she was afraid she would fail the tests and that she "might" be under the influence. The DUI officer's dashcam recording showed that while the Appellee asked numerous questions about the field sobriety tests and asked that others not watch her perform the evaluations, throughout his interaction with the Appellee, the DUI officer remained polite and calm, and he answered all of her questions without raising his voice.

         The DUI officer placed the Appellee under arrest for DUI and handcuffed her. When the DUI officer initially started reading the implied consent notice, the Appellee interrupted him and requested to stand on the other side of the patrol car, away from traffic. After the Appellee moved to the opposite side of the patrol car, the DUI officer started over and read the implied consent notice. After the Appellee asked the DUI officer whether Georgia's laws had changed, the DUI officer again read the implied consent notice. When he was finished, the DUI officer asked the Appellee if she agreed to undergo a breath test, and she responded, "Yes, I submit."

         As the DUI officer gathered the Appellee's requested personal belongings and placed her into his patrol car, the Appellee asked him several questions, such as if she could make a phone call, if he could take her handcuffs off, and what she should tell her boyfriend. The DUI officer responded that his department's "policy doesn't allow phone calls until after the transport process is over[.]" She then asked "[w]hat would I do to eliminate this situation?" to which the DUI officer responded: "This situation is already undergoing. There is no more elimination at this point, alright?"

         An audio recording from inside the DUI officer's patrol car shows that, on the way to the Cobb County police station, the Appellee asked several more questions, including whether the handcuffs could be adjusted to make them more comfortable, where the DUI officer was driving her, what her possible bond would be, what was the procedure for bonding out of jail, whether she would have to spend the night in jail, and what was the status of the other people involved in the accident. When the Appellee's phone rang again, the DUI officer apologized to the Appellee and told her that his department's policies did not allow her to answer her phone. After the Appellee expressed concern about her daughter, who was "14, by herself at [the Appellee's] home," the DUI officer offered to send another officer to check on the girl. The DUI officer also told the Appellee that, even though it was against the police department's policy, he "love[d] children more than anybody. Once we get to the precinct, once we finish there, at the precinct, I'll let you call [your boyfriend] to make sure [your daughter] gets checked on." The Appellee asked what law enforcement officers would say to her daughter if they went to her home, and the officer stated that he would "try to have [the Appellee's] boyfriend" talk to her daughter. The Appellee expressed appreciation to the DUI officer for his assurances.

         While still en route to the police station, the Appellee again asked if she could call someone about her daughter, and the DUI officer responded that he could not let her do that because he was driving and she was in handcuffs. He told her, however, that he was going to let her make a call "in a minute." After arriving at the police station, the DUI officer administered the breath test.[7]

         The Appellee filed a motion in limine to exclude the results of her field sobriety and breath tests. After a hearing, the trial court found probable cause for the Appellee's arrest, but granted the Appellee's motion to suppress her HGN test results, and granted the Appellee's motion in limine to suppress the results of her breath test, ruling that she had been compelled to perform the breath test, so the admission of the test results at trial would violate her right against self-incrimination under the Georgia Constitution. The State filed a timely appeal from the order, challenging the suppression of the breath test results.[8]

[On appeal, the] trial court's findings as to disputed facts in a ruling on a motion to suppress will be reviewed to determine whether the ruling was clearly erroneous; where the evidence is uncontroverted and no question regarding the credibility of witnesses is presented, the trial court's application of the law to undisputed facts is subject to de novo appellate review.[9]

         As noted above, however, 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 ...

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