Auken v. The State, A10A0462.

• Decision Date: 06 July 2010
• Docket Number: No. A10A0462.,A10A0462.
• Parties: VAN AUKENv.The STATE.
• Court: Georgia Court of Appeals

304 Ga.App. 802

697 S.E.2d 895

VAN AUKENv.The STATE.

No. A10A0462.

Court of Appeals of Georgia.

July 6, 2010.

Banks & Stubbs, Rafe Banks III, Cumming, for appellant.

Leslie C. Abernathy, Solicitor-General, Lynne S. Amos, Asst. Solicitor-General, for appellee.

BERNES, Judge.

After he was arrested during a traffic stop, Jason Van Auken filed a motion to suppress, arguing that the arresting officer lacked articulable suspicion to stop his vehicle for violating Georgia's “move-over” statute, which imposes a duty upon drivers to slow down or change lanes when approaching a stationary emergency vehicle with its flashing lights activated. OCGA § 40-6-16(a). The trial court denied the motion, concluding that while Van Auken technically had not committed a “move-over” violation, the officer had articulable suspicion to make the stop because he had a good faith belief that an unlawful act had occurred. During the ensuing jury trial, Van Auken moved for a directed verdict of acquittal on the “move-over” violation, which the trial court denied. The jury returned a verdict of guilty, and the trial court denied Van Auken's motion for new trial. Van Auken appeals, contending that the trial court erred in denying his motion for a directed verdict of acquittal, given the court's prior ruling on the suppression motion that the “move-over” statute had not been violated. For the reasons discussed below, we reject this contention and affirm.

On appeal, the standard of review for denial of a motion for directed verdict is the same as that for determining the sufficiency of the evidence to support a conviction. The issue is whether, based on the evidence presented, a rational finder of fact could have found the accused guilty of the charged offenses beyond a reasonable doubt. Leaving the resolution of conflicting or contradictory testimony and the credibility of the witnesses to the jury, we construe the evidence in favor of the jury's verdict[ ].

(Punctuation and footnotes omitted.) Hash v. State, 248 Ga.App. 456, 457(1), 546 S.E.2d 833 (2001). See Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

Viewed in this light, the evidence showed that on the evening of October 12, 2007, a police sergeant with the Georgia State Patrol was parked in his marked patrol car with flashing blue lights activated on the right shoulder of Georgia 400 northbound. The patrol car was parked along a straightaway at least a half of a mile in length. The sergeant had just issued a warning citation to a large motor home and had agreed to assist the motor home in merging back onto the highway. Before he began to accelerate and reenter the highway, the sergeant looked in his mirror and observed Van Auken's vehicle approaching in the right traffic lane adjacent to his stationary patrol car. According to the sergeant, Van Auken was approximately a half of a mile away from the patrol car at that point.

With the flashing blue lights still activated on his patrol car, the sergeant put his car into drive and began to slowly merge into the right lane of traffic. Seconds later, before the sergeant had fully merged his patrol car into the right traffic lane, Van Auken nearly struck the patrol car as he changed lanes at the last possible moment without slowing down.

The sergeant activated his siren and initiated a traffic stop based upon his belief that Van Auken had committed a “move-over” violation. During the course of the traffic stop, the sergeant noted that Van Auken had the odor of alcohol on his breath, appeared unsteady on his feet at times, had bloodshot eyes, and exhibited multiple signs of impairment while attempting to perform a series of field sobriety tests. After first denying to the sergeant that he had consumed any alcohol, Van Auken ultimately admitted to drinking beer at a bar that evening after work. Based upon these observations and Van Auken's driving, the sergeant determined in light of his training and experience that Van Auken had been driving under the influence of alcohol to the extent that he was a less safe driver (“DUI-Less Safe”).

The sergeant arrested Van Auken for DUI-Less Safe and for committing a “move-over” violation. After reading the applicable implied consent notice to Van Auken, the sergeant requested that he submit to a state-administered chemical test of his breath and blood. Van Auken declined the request and was transported to the detention center.

Van Auken filed a motion to suppress challenging the legality of the traffic stop on the ground that the sergeant lacked articulable suspicion to believe that he had violated the “move-over” statute, OCGA § 40-6-16. That statute provides in relevant part:

(a) The operator of a motor vehicle approaching a stationary authorized emergency vehicle that is displaying flashing yellow, amber, white, red, or blue lights shall approach the authorized emergency vehicle with due caution and shall, absent any other direction by a peace officer, proceed as follows:

(1) Make a lane change into a lane not adjacent to the authorized emergency vehicle if possible in the existing safety and traffic conditions; or

(2) If a lane change under paragraph (1) of this subsection would be impossible, prohibited by law, or unsafe, reduce the speed of the motor vehicle to a reasonable and proper speed for the existing road and traffic conditions which speed shall be less than the posted speed limit, and be prepared to stop.

(Emphasis supplied.) OCGA § 40-6-16(a). According to Van Auken, the sergeant did not have the reasonable articulable suspicion necessary to stop his vehicle because the patrol car had been moving-rather than “stationary”-at the time the sergeant observed Van Auken fail to properly slow down or change lanes.

At the evidentiary hearing on the motion to suppress, the sergeant who made the traffic stop testified to the events set out above. Additionally, a video recorder in the sergeant's patrol car recorded the incident from the point when the sergeant first began merging his car slowly back into the right lane of traffic, and the trial court reviewed the videotape. In its order denying the motion to suppress, the trial court found that

the evidence is undisputed that [the sergeant's] vehicle was slightly moving at the time [Van Auken] was observed changing lanes at the last possible instant. Thus, pursuant to the above-cited “move-over” statute, [Van Auken] cannot be found to have violated OCGA § 40-6-16(a).

The trial court went on to conclude, however, that the sergeant had articulable suspicion to make the stop because he had a good faith belief that an unlawful act had been committed. See, e.g. State v. Rheinlander, 286 Ga.App. 625, 626-627, 649 S.E.2d 828 (2007). The trial court reached the same conclusions in its subsequent order denying Van Auken's motion for reconsideration.

The case was tried before a jury on the charges of DUI-Less Safe and violation of the “move-over” statute. The jury heard the testimony of the sergeant regarding the traffic stop and saw the video recording from the patrol car. During his testimony, the sergeant reiterated that immediately prior to merging into the right traffic lane, his patrol car had been stationary, with its flashing blue lights activated, on the right shoulder along a straightaway of Georgia 400 that stretched at least a half of a mile. The sergeant further noted that he had observed Van Auken approaching from approximately half a mile away when his patrol car was still stationary on the right shoulder, and that Van Auken “would've been able to see [him] sitting...