Childress v. State

• Court: Georgia Court of Appeals
• Writing for the Court: ELDRIDGE.
• Citation: Childress v. State, 554 S.E.2d 818, 251 Ga. App. 873 (Ga. App. 2001)
• Decision Date: 11 October 2001
• Docket Number: No. A01A1643.,A01A1643.
• Parties: CHILDRESS, v. The STATE.

554 S.E.2d 818

251 Ga. App. 873

CHILDRESS, v. The STATE.

No. A01A1643.

Court of Appeals of Georgia.

October 11, 2001.

James P. Brown, Jr., Mcdonough, for appellant.

Jason M. Childress, pro se.

John T. Rutherford, Solicitor-General, for appellee. ELDRIDGE, Judge.

Jason Michael Childress was charged with the offenses of driving under the influence of alcohol to the extent he was a less safe driver (OCGA § 40-6-391(a)(1)), driving with more than 0.10 percent blood alcohol content (OCGA § 40-6-391(a)(5)), reckless driving (OCGA § 40-6-390), and failure to maintain lane (OCGA § 40-6-48). Childress moved to suppress all evidence obtained during his arrest, arguing that the arresting officer did not have probable cause to stop and arrest him and that he was not read his implied consent warnings. After a hearing, the trial court denied Childress's motion to suppress. Following a bench trial, the trial court found Childress guilty of DUI—less safe driver and failure to maintain lane. It is from this conviction that Childress appeals. Finding no error, we affirm.

1. Childress enumerates as error the denial of his motion to suppress. On appeal Childress's sole argument is that his arrest was without probable cause.

The appeal of a trial court's ruling on a motion to suppress is governed by three principles:

First, when a motion to suppress is heard by the trial judge, that judge sits as the trier of facts. The trial judge hears the evidence, and his findings based upon conflicting evidence are analogous to the verdict of a jury and should not be disturbed by a reviewing court if there is any evidence to support those findings. Second, the trial court's decision with regard to questions of fact and credibility must be accepted unless clearly erroneous. Third, the reviewing court must construe the evidence most favorably to the upholding of the trial court's findings and judgment.

(Citation and punctuation omitted.) Perez v. State, 249 Ga.App. 399-400, 547 S.E.2d 699 (2001).

Viewed in this light, the evidence shows that on October 22, 1999, Officer Teddy Ray Gribbins of the Henry County Police Department was patrolling the area of State Highway 155 and Kellytown Road. It was around midnight when Officer Gribbins initially traveled down Highway 155. At this time he did not notice any cars on the side of the highway. At approximately 2:48 a.m., Officer Gribbins was again traveling south down Highway 155. At this time, he noticed a red Nissan Sentra automobile which appeared to have run off the road. The vehicle had flat tires, "some damage to the front and sides and the passenger side window was busted out[.]" Officer Gribbins did not see any debris in the roadway near the scene, nor did he see anyone nearby. Officer Gribbins checked the tag to make sure the car was not stolen, and because he had not seen anyone walking before he came upon the vehicle, he decided to continue south on Highway 155 to see if the driver needed assistance.

About two miles south, Officer Gribbins noticed Childress sitting by the pay phone at a Chevron gas station. Officer Gribbins approached Childress without engaging his siren and emergency equipment. As Childress stood up, Officer Gribbins noticed that he was unsteady on his feet. Officer Gribbins testified that Childress's voice was slurred, his eyes were red and glassy, and he smelled strongly of alcoholic beverage. Childress admitted that he had been driving the red Nissan Sentra and stated that he had run off the road when the tires on his vehicle had blown after hitting some debris. Childress further admitted to Officer Gribbins that he drank a couple of beers earlier.

When Officer Gribbins asked Childress to perform field sobriety tests, Childress refused and became argumentative. Officer Gribbins testified that Childress was "getting very loud and he kept walking toward me. We ended up back beside my car." At this point, because Childress was yelling and leaning up against Officer Gribbins's car, the police dog which was in Officer Gribbins's car became upset and started barking. Based upon Officer Gribbins's training and experience as a police officer and in investigating accidents and his observations at the scene, Officer Gribbins opined that Childress was under the influence of alcohol and less safe to drive and that he had run off the road, lost control of his vehicle, and struck the ditch which bent the right-side rims and flattened the tires of Childress's vehicle. Relying on this evidence, Officer Gribbins arrested Childress for DUI and failure to maintain lane.

Under our law, there are three levels of police-citizen encounters. In the first level, police officers may approach citizens, ask for identification, and freely question the citizen without any basis or belief that the citizen is involved in criminal activity, as long as the officers do not detain the citizen or create the impression that the citizen may not leave. This tier provides no Fourth Amendment protection. The second tier occurs when the officer actually conducts a brief investigative Terry¹ stop of the

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