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Hernandez v. State

Court of Appeals of Georgia, First Division

February 11, 2019

HERNANDEZ
v.
THE STATE.

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

          Barnes, Presiding Judge.

         Amanda Hernandez appeals from the denial of her motion to suppress, as amended, the results of her blood test following her arrest for DUI. Because her consent to the blood test was premised on inaccurate information as to the consequences of refusing consent, we reverse the trial court's judgment.

         "[O]n a motion to suppress, the State has the burden of proving that a search was lawful." (Punctuation and footnote omitted.) State v. Hammond, 313 Ga.App. 882, 883-884 (723 S.E.2d 89) (2012) Thus, "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." (Citation and punctuation omitted) Williams v. State, 296 Ga. 817, 821 (771 S.E.2d 373) (2015). Where, as here, the relevant facts are undisputed, this Court's review is de novo. State v. Oyeniyi, 335 Ga.App. 575, 575- 576 (782 S.E.2d 476) (2016).

         The facts as testified to at the motion to suppress hearing demonstrate that on October 2, 2015, Hernandez was stopped by a Georgia State Patrol trooper for speeding. Hernandez produced a valid Washington State driver's license, but when the trooper noticed the odor of alcohol, he began a DUI investigation. The trooper requested that Hernandez exit her car, and as they talked, he noticed that, in addition to the "smell of alcohol," Hernandez "had a slight slur in her speech." Hernandez told the trooper that she was coming from a "local tavern" and had consumed a "few drinks" so he asked her to take a preliminary breath test ("PBT"). Hernandez complied and the BPT test was positive for breath alcohol. Hernandez also consented to the administration of field sobriety tests, resulting in six out of six possible clues in the horizontal gaze nystagmus test, eight out of a possible eight clues in the walk-and-turn test, and three out of a possible four clues in the one-leg stand test. After the field sobriety tests were administered, the trooper advised Hernandez that she was being arrested for DUI, placed her in handcuffs, and then "went into reading the implied notice . . . [for] over 21." The trooper testified that although at the time he read her the implied consent notice Hernandez "started to cry a little bit because . . . she [was] being handcuffed and . . . arrested," she did not appear to be afraid, confused or under any duress.

         Only the events following Hernandez's field sobriety tests and arrest were captured in an audiovisual recording of the traffic stop from the trooper's dashboard camera introduced at the hearing.[1] The recording shows that after placing Hernandez under arrest, the trooper read her the implied consent notice for age 21 and over, and Hernandez responded, "Okay, yes," when asked whether she would submit to state administered chemical testing of her blood. The trooper responded, "that's a verbal yes." After the trooper informed Hernandez that he would be taking her to the hospital, she asked why and the following exchange ensued:

         Trooper: Well, drawing your - [unintelligible] - I read you that card - the implied consent - when you get a driver's license - at the time of arrest for DUI, you have an implied consent.

Hernandez: Mm-hm?
Trooper: I read that to you - and - gave you a choice of doing a state blood test.
Hernandez: Oh. So, no, I don't want to do that. Do I have to?
Trooper: You don't have to -
Hernandez: I do not want to do that.
Trooper: - it's your choice. But it's a state test, and if you refuse it, then your driving privileges can be suspended for a year.
Hernandez thereafter continued to question the trooper about the distinctions between a breath test, a blood test, the reasons for each, and the need for consent for each, and the following additional exchanges ensued:
Trooper: Are - are you - so are you saying "yes" to the blood or "no" to the blood?
Hernandez: Well, is that the one you're choosing - out of all three?
Trooper: Yes. I'm - that's the one I'm choosing -
Hernandez: Do I have to say "yes"? Trooper: - that's the one I - that's - you can - you can say "yes" or "no"; it's your ...

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