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Mason v. State

Court of Appeals of Georgia, Second Division

January 8, 2020

MASON
v.
THE STATE.

          MILLER, P. J., RICKMAN and REESE, JJ.

          Rickman, Judge.

         Spencer 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.

         Following 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.

         1. 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).

         2. 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.

         "[A] 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 636) (2015).

         Mason 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 ...

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