BARNES, P. J., MERCIER and BROWN, JJ.
found Sheikh Abusai Fofanah guilty of driving under the
influence (per se), driving under the influence (less safe),
and failure to maintain lane. On appeal following the denial of
his motion for new trial, Fofanah argues that the trial court
erred by denying his motion to suppress and admitting the
results of his breath test because (1) his consent to submit
to the breath test was not preceded by a
Mirandaadvisement; and (2) the implied consent
advisement was misleading because it stated that
Fofanah's refusal to submit to the breath test could be
used against him at trial. For the reasons set forth below,
we vacate the trial court's order on the motion to
suppress and remand the case for the trial court to consider
Fofanah's suppression argument in light of recent Supreme
appeal from a criminal conviction, we view the evidence in
the light most favorable to the verdict, and the defendant is
no longer entitled to the presumption of innocence."
Dickson v. State, 339 Ga.App. 500, 501 (1) (793
S.E.2d 663) (2016) (citation and punctuation omitted). So
viewed, the record shows that in March 2014, a concerned
citizen called the police after allegedly observing a person
driving erratically. A deputy who was dispatched to the area
observed Fofanah failing to maintain his lane of travel. The
deputy initiated a traffic stop. After making contact with
Fofanah, the deputy smelled a strong odor of alcohol
emanating from inside the car. The deputy asked Fofanah if he
had been drinking. Fofanah replied that he had consumed a
drink containing alcohol earlier.
deputy asked Fofanah to exit the vehicle. While exiting the
vehicle, Fofanah held onto the vehicle for support and
"stumbled a bit." A second officer arrived on the
scene and performed the horizontal gaze nystagmus
("HGN") test on Fofanah. Based on his observations
of Fofanah, including Fofanah's failure to maintain lane,
the odor of alcohol, Fofanah's admission that he had been
drinking, his unsteadiness on his feet and the results of the
HGN test, the deputy arrested Fofanah. The deputy read to
Fofanah the implied consent notice for suspects 21 and over,
asking if he would submit to a state-administered test of his
breath. See OCGA § 40-5-67.1 (b) (2) (2014). Fofanah
answered affirmatively. The officers transported Fofanah to a
detention center to perform the breath test on an Intoxilyzer
5000 machine. Fofanah's breath test registered an alcohol
concentration of .216 grams, which was above the legal limit
of .08 grams. See OCGA § 40-6-391 (a) (5).
to trial, Fofanah filed a motion to suppress the results from
the breath test. He argued, among other things, that he did
not validly consent to the breath test because the officers
failed to give him a Miranda warning and because the
implied consent notice unduly influenced his decision by
informing him that his consent was required and that he faced
"dire consequences" if he refused. The trial court
denied his motion to suppress the breath test results. The
trial court, in considering the totality of the
circumstances, found that Fofanah voluntarily consented to
the breath test. Specifically, the court noted that Fofanah
comprehended the officers' instructions and was not
incoherent in his responses, the officers were not
threatening in any way, and the officers did not intimidate
or use force against Fofanah in order to gain his consent.
his conviction, Fofanah filed a motion for new trial, which
the trial court denied. This appeal followed.
Fofanah argues that the trial court should have excluded the
results of the breath test because the officers did not give
him a Miranda advisement prior to seeking his
consent for the test. He notes that he was under arrest and
in custody at the time the officers requested his consent.
reviewing a trial court's ruling on a motion to suppress,
[an appellate court] must construe the record in the light
most favorable to the factual findings and judgment of the
trial court and accept the trial court's findings of
disputed facts unless they are clearly erroneous."
State v. Turner, 304 Ga. 356 (818 S.E.2d 589) (2018)
(citations omitted). However, "the trial court's
application of the law to undisputed facts is subject to de
novo review." State v. Clay, 339 Ga.App. 473
(793 S.E.2d 636) (2016) (citation and punctuation omitted).
scope of the right against self-incrimination protected by
the Fifth Amendment to the United States Constitution is
limited to evidence of a testimonial or communicative
nature." MacMaster v. State, 344 Ga.App. 222,
228 (1) (b) (809 S.E.2d 478) (2018) (citation and punctuation
omitted). To be testimonial, an accused's communication
must relate a factual assertion or disclose information.
Id. "A defendant's verbal consent to take a
breath test and the results obtained from such a test are not
evidence of a testimonial or communicative nature and thus do
not implicate the right against self-incrimination under the
Fifth Amendment." Id. (citation omitted).
Accordingly, because "a defendant's Fifth Amendment
right against self-incrimination is not implicated by a
State-administered breath test[, ]" "the absence of
Miranda warnings does not require suppression of
[Fofanah's] consent to the breath test under federal
law." Id. at 229 (1) (c) (citation and
Georgia Constitution similarly provides a right against
self-incrimination. Ga. Const. of 1983, Art. I, Sec. I, Par.
XVI ("Paragraph XVI"). In interpreting this
provision, our Supreme Court has held that Paragraph XVI
protects a broader range of conduct than the Fifth Amendment,
and applies to compelled acts, not merely testimony. See
Olevik v. State, 302 Ga. 228, 239-241 (2) (c) (ii)
(806 S.E.2d 505) (2017). "Breathing deep lung air into a
breathalyzer is a self-incriminating act that Paragraph XVI
prevents the State from compelling." Id. at
243-244 (2) (c) (iii). The Court explained that
"obtaining this deep lung breath requires the
cooperation of the person being tested because a suspect must
blow deeply into a breathalyzer for several seconds in order
to produce an adequate sample." Id. at 243 (2)
(c) (iii) (citation omitted).
"the right against self-incrimination under Paragraph
XVI is not violated where the defendant voluntarily consents
to the breath test rather than being compelled."
MacMaster, supra at 228 (1) (b) (citation omitted).
We have held that "an arrestee is not, under Georgia
constitutional or statutory law, entitled to Miranda
warnings before deciding whether to submit to the State's
request for [a] test of breath, blood, or urine."
Id. at 229 (1) (c) (citing State v. Coe,
243 Ga.App. 232, 234 (2) (533 S.E.2d 104) (2000), overruled
in part on other grounds by Olevik, supra at 246 (2)
(c) (iv), n.11). Additionally, our Supreme Court recently
held that, based on the history and context of Georgia
constitutional provisions, neither Georgia law nor the
Georgia Constitution requires that a suspect in custody
receive a Miranda warning before being asked if he
or she will submit to a breath test. See State v.
Turnquest, 305 Ga. 758, 760-761 (3) (827 S.E.2d 865)
(2019) . Thus, the officers were not required to give Fofanah
a Miranda warning before asking him if he would
submit to the breath test, and the trial court did not err in
Fofanah argues that the implied consent notice the deputy
read to him was materially and substantially misleading
because it stated that if he refused to submit to the breath
test, then his refusal could be used against him at trial. He
contends that this information was inaccurate because his
refusal could not be used against him at trial, and the
inaccurate information would induce a person to submit to a
state-administered breath test. Therefore, he asserts, his
breath test results should have been excluded at trial.
time of Fofanah's arrest, the implied consent notice
provided that: "Georgia law requires you to submit to
state administered chemical tests of your blood, breath,
urine, or other bodily substances for the purpose of
determining if you are under the influence of alcohol or
drugs. . . . Your refusal to submit to the required testing
may be offered into evidence against you at trial. . .
." OCGA § 40-5-67.1 (b) (2) (2014). As noted above,
Paragraph XVI of Georgia's Constitution prevents the
State from compelling a person to breathe deeply into a
breathalyzer or breath analysis machine because it is a
self-incriminating act. See Olevik, supra at 241-244
(2) (c) (iii). For this reason, the admission of evidence at