Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

O'Shields v. The State

Court of Appeals of Georgia, Fourth Division

September 11, 2019

O'SHIELDS
v.
THE STATE.

          DOYLE, P. J., COOMER and MARKLE, JJ.

          MARKLE, JUDGE.

         Following a jury trial, Robert O'Shields was convicted of two counts of homicide by vehicle in the first degree (OCGA § 40-6-393 (a)); two counts of DUI less safe (OCGA § 40-6-391 (a)); and one count of possession of methamphetamine (OCGA § 16-13-30 (a)).[1] He now appeals from the trial court's denial of his motion for new trial, as amended, arguing that (1) the trial court should have granted his motion to suppress the results of his blood test; (2) the trial court erred in refusing to charge the jury on a lesser included offense; and (3) he received ineffective assistance of counsel. After a thorough review of the record, and for the reasons that follow, we affirm the denial of the motion to suppress, but we reverse the denial of the motion for new trial, and remand the case for further proceedings.

         Viewing the evidence in the light most favorable to the verdict, Jackson v. Virginia, 443 U.S. 307 (99 S.Ct. 2781, 61 L.Ed.2d 560) (1979), the record shows that, in the early morning hours of May 25, 2015, O'Shields rear-ended a fire truck that was stopped on the expressway in Clayton County due to a previous, unrelated accident. The passenger in O'Shields's car was killed and O'Shields was injured in the accident. O'Shields was taken to the hospital, where Georgia State Patrol troopers interviewed him while he was awaiting surgery.

         At the time of the interview, O'Shields was able to answer questions, was aware of the accident, and asked the troopers about the passenger. He told the troopers that his passenger, who was a heavy man, had collapsed on him, and he was taking the passenger to the hospital when the accident occurred. Although he seemed cognizant, the troopers noticed he spoke with slurred speech and had likely received pain medication prior to the interview. The two state troopers interviewing O'Shields believed he might have been under the influence at the time of the accident, and one of them asked him for consent for a blood test. O'Shields gave consent, and the blood test results were positive for methamphetamine, amphetamine, and alprazolam (Xanax).

         Before he was taken into surgery, O'Shields gave his belongings to hospital staff, including a tin box that he told staff was "special" and which he instructed the staff not to open. Police later determined the contents of the box to be 5.05 grams of methamphetamine.

         Investigators obtained crash data from the airbag modules in O'Shields's car. The data showed that O'Shields had been traveling 76 miles per hour seconds before the accident, and 74 miles per hour at impact. The posted speed limit was 65 miles per hour. The data also showed that he had applied his brakes in the seconds leading to the crash. A trooper testified that methamphetamine could slow a driver's response time.

         O'Shields requested that the trial court instruct the jury on the lesser included offense of second degree vehicular homicide because the police initially alleged that O'Shields had been following too closely.[2] The trial court declined to do so based on the manner in which O'Shields was indicted. The jury convicted O'Shields of two counts each of vehicular homicide in the first degree and DUI less safe based on the drugs, and one count of possession of methamphetamine.[3]

         Thereafter, O'Shields filed a motion for a new trial and an amended motion for new trial. As is relevant to this appeal, O'Shields argued that the trial court erred in failing to (1) suppress the results of his blood test, and (2) instruct the jury on the lesser included offense of homicide by vehicle in the second degree. He further alleged that he received ineffective assistance of counsel when trial counsel prematurely moved to exclude evidence, which alerted the State to its failure to prove the possession charge.

         At a hearing on the motion for new trial, trial counsel testified that, prior to the State resting its case in chief, she moved to exclude any evidence of the methamphetamine because the State had not presented a witness to establish possession. She was aware that the State had a witness on its list, but thought the witness was not going to testify. She admitted, however, that she understood the State could still add witnesses at that point in the trial. The trial court denied the motion for new trial, as amended, and this appeal followed.

         1. O'Shields argues that the trial court erred by refusing to suppress the results of the blood test because the State failed to meet its burden to prove that he gave consent. He explains that he was not read the implied consent notice, he was confused and under the influence of pain medication when he was asked for consent, he did not sign a written consent form, and the trooper who testified about obtaining consent was merely a witness to the interview and was not the officer who actually requested consent.[4] We are not persuaded.

A suspect's right under the Fourth Amendment 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. 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.

(Citations omitted.) Williams v. State, 296 Ga. 817, 819 (771 S.E.2d 373) (2015). "[I]t is well settled in the context of a DUI blood draw that a valid consent to a search eliminates the need for either probable cause or a search warrant." (Citation omitted.) Id. at 821. And, where the State points to consent as the basis for the search, "the State has the burden of proving that the accused acted freely and voluntarily under the totality of the circumstances." (Citations omitted.) Id.

Specifically, under Georgia law, voluntariness must reflect an exercise of free will, not merely a submission to or acquiescence in the express or implied assertion of authority. Consequently, the voluntariness of consent to search is measured by evaluating the totality of the circumstances, which includes factors such as prolonged questioning; the use of physical punishment; the accused's age, level of education, intelligence, length ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.