MILLER, P. J., RICKMAN and REESE, JJ.
Mason was convicted of driving under the influence of alcohol
and his motion for new trial was denied. On appeal, he
contends that the trial court erred in denying his motion to
suppress and that the State presented insufficient evidence
to show that he was the driver of the vehicle. Finding no
error, we affirm.
a single car accident, an officer who responded to the scene
applied for a search warrant to obtain access to blood drawn
from Mason at the hospital. The results of the blood test
indicated a blood alcohol content of .23 grams. Mason was
accused of driving under the influence of alcohol (less
safe), as well as failure to maintain lane. Mason moved to
suppress the results of the blood test on the ground that the
search warrant affidavit failed to establish probable cause
to support issuance of a warrant. Following a hearing, the
trial court denied the motion. Mason waived a jury, submitted
to a bench trial, and was found guilty. Mason moved for a new
trial, the trial court denied the motion, and Mason appealed.
Mason's trial counsel failed to file a timely brief in
this Court, and Mason's initial appeal was therefore
dismissed. Mason moved for an out-of-time appeal in the trial
court, which was granted, and he brought the current appeal.
First, the State argues that because this Court dismissed
Mason's earlier appeal, Mason's current appeal is not
authorized under OCGA §§ 5-6-33 (a) (1) or 5-6-34.
This argument is without merit. Mason was authorized to seek
an out-of-time appeal because his earlier appeal was
dismissed as the result of ineffective assistance of counsel.
See Rowland v. State, 264 Ga. 872, 875 (2) (452
S.E.2d 756) (1995) ("A criminal defendant who has lost
his right to appellate review of his conviction due to error
of counsel is entitled to an out-of-time appeal.");
Howse v. State, 262 Ga.App. 790, 790 (586 S.E.2d
695) (2003) (out-of-time appeal allowed when as the result of
ineffective assistance of counsel, defendant's appeal to
this court was dismissed for failure to file brief and
enumeration of errors).
Mason contends the trial court erred in denying the motion to
suppress because the search warrant affidavit submitted to
obtain the warrant to take Mason's blood failed to
establish probable cause of a crime.
search warrant may be issued only upon an affidavit
'which states facts sufficient to show probable cause
that a crime is being committed or has been
committed.'" Mizell v. State, 304 Ga. 723,
726 (2) (822 S.E.2d 211) (2018), quoting OCGA § 17-5-21
(a). The magistrate, trial court, and appellate court have
the following responsibilities:
The magistrate's task in determining if probable cause
exists to issue a search warrant is simply to make a
practical, common-sense decision whether, given all the
circumstances set forth in the affidavit before him,
including the veracity and basis of knowledge of persons
supplying hearsay information, there is a fair
probability that contraband or evidence of a crime will be
found in a particular place.
The trial court may then examine the issue as a first level
of review, guided by the Fourth Amendment's strong
preference for searches conducted pursuant to a warrant, and
the principle that substantial deference must be accorded
a magistrate's decision to issue a search warrant
based on a finding of probable cause.
The duty of the appellate courts is to determine if [under
the totality of the circumstances] the magistrate had a
substantial basis for concluding that probable cause existed
to issue the search warrant. . . . [And] we apply the
well-established principles that the trial court's
findings as to disputed facts will be upheld unless clearly
erroneous and the trial court's application of the law to
undisputed facts is subject to de novo review, keeping in
mind that a magistrate's decision to issue a search
warrant based on a finding of probable cause is entitled to
substantial deference by a reviewing court.
(Citations and punctuation omitted, emphasis supplied.)
Id. at 726-727 (2). Finally, "an appellate
court generally must limit its consideration of the disputed
facts to those expressly found by the trial court."
Hughes v. State, 296 Ga. 744, 746 (1) (770 S.E.2d
moved to suppress all blood-test results on the ground that
the search warrant affidavit used to obtain the warrant did
not establish probable cause of a crime. At the hearing on
the motion, an officer with specialized DUI training
testified that at approximately 2:30 a.m. on January 1, 2014,
he received a report of a serious incident and responded to
the call. Upon arrival at the scene, the officer interviewed
a witness who had information about the single car accident.
Based on that conversation and a conversation with the first
officer on the scene, the DUI officer prepared an affidavit
and application for a search warrant. The relevant portion of
the affidavit states as follows:
The facts tending to establish probable cause that a crime
has been, or is being committed . . . are as follows: On
1/1/14[, ] I responded to a serious injury wreck on
Montgomery Crossroads near Abercorn St. An SUV driven by Mr.
Mason was traveling westbound on Montgomery Crossroads when
it left the roadway. The SUV went up onto a grass median and
struck a large tree. The SUV rotated and came to rest back on
the westbound side of Montgomery Crossroads. The driver of
the SUV sustained two broken legs and extensive facial
injuries. A witness ...