Durrance v. State

• Decision Date: 22 February 2013
• Docket Number: No. A12A1898.,A12A1898.
• Citation: 319 Ga.App. 866,738 S.E.2d 692
• Parties: DURRANCE v. The STATE.
• Court: Georgia Court of Appeals

319 Ga.App. 866

738 S.E.2d 692

DURRANCE

v.The STATE.

No. A12A1898.

Court of Appeals of Georgia.

Feb. 22, 2013.

Eric Charles Crawford, for Appellant.

Layla Hinton Zon, Brandon Karl Honsalek, for Appellee.

MILLER, Presiding Judge.

Following a jury trial, Jason Durrance was convicted of driving with an alcohol concentration exceeding 0.08 grams (“DUI per se” OCGA § 40–6–391(a)(5)).¹ Durrance filed a motion for new trial, which the trial court denied. On appeal, Durrance contends that the trial court erred in denying his motion to suppress the results of the breath test and the field sobriety examination. Durrance also contends that the trial court erred in allowing the State to cross-examine him and present evidence showing the severity of an argument he had with his wife prior to the DUI offense. Durrance also challenges the trial court's sentence, contending that the trial court imposed probation conditions that were unduly restrictive and unrelated to his conviction.² For the following reasons, we affirm.

Viewed in the light most favorable to the jury's verdict,³ the evidence shows that on the night of February 25, 2011, Durrance's wife called the police to report a domestic disturbance with Durrance. The officers were dispatched to a neighbor's house where Durrance's wife had fled. The officers were informed that Durrance may have had a weapon, and that they needed to park their vehicles a safe distance from the house in order to assess the situation. Since there was no shoulder on the road, the officers parked their vehicles in the roadway.

Several minutes after Durrance noticed the officers congregating in front of the neighbor's residence, he drove to the officers' location to determine why they were there. When Durrance stopped at the patrol vehicles, one officer explained to Durrance that they were responding to a call, and that they would move their vehicles as soon as they could to allow Durrance to pass. Durrance responded that his wife probably made the call. When the officer determined that Durrance was the suspect, he asked Durrance to shut off the vehicle's engine, keep his hands in plain view, and exit the vehicle.

As soon as Durrance exited his vehicle, an officer detected a strong odor of alcohol coming from Durrance and the vehicle. The officer also noticed that Durrance was sluggish and off-balance, his eyes were bloodshot and watery, and his speech was slurred. Durrance admitted that he been drinking beer and vodka that night. Durrance failed some of the field sobriety tests administered to him, and he registered a positive alco-sensor test result. Durrance was arrested for DUI, was read the required implied consent notice, and agreed to give a State-administered breath sample on the Intoxilyzer 5000 device. The test results indicated that Durrance had blood alcohol concentration levels of 0.092 and 0.089.

Durrance was charged and convicted of DUI per se. Durrance appeals as follows.

1. Durrance contends that the trial court erred in denying his motion to suppress and argues that our review of the trial court's ruling should be limited to evidence adduced at the suppression hearing. We disagree.

“When reviewing a trial court's ruling on a motion to suppress, the evidence must be construed most favorably toward the court's findings unless those findings are clearly erroneous.” (Citation and punctuation omitted.) Herring v. State, 279 Ga.App. 162, 630 S.E.2d 776 (2006). The trial court's application of the law to undisputed facts is subject to de novo review. State v. Nash, 279 Ga. 646, 648(2), 619 S.E.2d 684 (2005).

Notwithstanding Durrance's claim to the contrary, it is well settled that in reviewing a trial court's decision on a motion to suppress, we may consider all relevant evidence of record, including evidence introduced at trial. See Pittman v. State, 286 Ga.App. 415, 416, 650 S.E.2d 302 (2007); see also Bonds v. State, 188 Ga.App. 135, 372 S.E.2d 448 (1988) (providing that we may consider all relevant evidence introduced at a pretrial hearing, an appropriate post-trial hearing, or at trial when reviewing the denial of motion to suppress). Applying this standard,we turn to address Durrance's specific claims.

(a) Durrance argues that the trial court should have granted his motion to suppress because the police instituted an unauthorized roadblock. His claim lacks merit.

A roadblock is a checkpoint designed to stop drivers on a road for various purposes, including screening for impaired drivers and checking drivers' licenses. See Thomas v. State, 277 Ga.App. 88, 90, 625 S.E.2d 455 (2005).

Here, there is no evidence the police officers were conducting a roadblock. Rather, the officers were responding to an emergency call made by Durrance's wife. Since the officers were advised that Durrance had a weapon, they parked their vehicles a safe distance away from the house in which the call was made. Although this required the officers to park their vehicles in the road, there was no evidence that the officers were purposefully stopping vehicles in order to screen drivers. Notably, an officer testified that approaching drivers could move around the patrol vehicles if they wished to continue down the road. In addition, when Durrance came upon the parked patrol vehicles, there is no evidence that the officers commanded Durrance to stop or otherwise indicated that he was not free to pass. As a result, Durrance has failed to demonstrate that the officers were conducting a roadblock.

(b) Durrance next argues that the police officers stopped him without reasonable suspicion. Again, his claim lacks merit.

[There are] three tiers of police-citizen encounters: (1) communication between police and citizens involving no coercion or detention and therefore without the compass of the Fourth Amendment, (2) brief seizures that must be supported by reasonable suspicion, and (3) full-scale arrests that must be supported by probable cause.

...

A first-tier encounter never intrudes upon any constitutionally protected interest since the purpose of the Fourth Amendment is not to eliminate all contact between police and citizens, but simply to prevent arbitrary and oppressive police interference with the privacy and personal security of individual citizens. A second-tier encounter, on the other hand, may violate the Fourth Amendment if the officer briefly stops or seizes a citizen without a particularized and objective basis for suspecting that a citizen is involved in criminal activity. Moreover, a “seizure” within the meaning of the Fourth Amendment only occurs when, in view of all the circumstances surrounding the incident, a reasonable person believes that he is not free to leave.

(Citations, punctuation, and footnotes omitted.) Chapman v. State, 279 Ga.App. 200, 201–202(1), 630 S.E.2d 810 (2006).

Here, Durrance decided to drive to the officers' location to determine why they were there. Durrance stopped at the parked patrol vehicles without being directed to do so. The officer approached Durrance's stopped vehicle to inform Durrance of the situation, and the officer's approach falls within the first-tier encounter. See Chapman, supra, 279 Ga.App. at 202(1), 630 S.E.2d 810; see also In the Interest of A.A., 265 Ga.App. 369, 371–372(1), 593 S.E.2d 891 (2004) (officers' approach of stopped vehicle was a first-tier encounter despite the fact that officer's vehicle was blocking the driveway). Additionally, the evidence shows that the officers would have allowed vehicles to pass, and there is no evidence showing that the officer either restrained Durrance's movement by means of physical force or show of authority, or that the officer prevented Durrance from turning around and driving away during the initial encounter. Consequently, the officer did not need a reasonable suspicion to approach Durrance's stopped vehicle. Chapman, supra, 279 Ga.App. at 202(1), 630 S.E.2d 810.

(c) Durrance next contends that when he was asked to exit the vehicle and was questioned, the officers were required to provide him Miranda⁴ warnings because he was restrained to a degree associated with a formal arrest. We disagree.

An individual must be advised of his Miranda rights, including his right against self-incrimination, only after being taken into custody or otherwise deprived of his freedom of action in any significant way. A person is in custody for Miranda purposes if he has been formally arrested or restrained to the degree associated with a formal arrest. The test for determining whether a detainee is in custody for Miranda purposes is whether a reasonable person in the detainee's position would have thought the detention would not be temporary.... As a general rule, although a motorist is deprived of his freedom of action during a traffic stop, such detention is insufficient to trigger the rights set forth in Miranda. The issue of whether one is in custody for Miranda purposes is a mixed question of law and fact, and the trial court's determination will not be disturbed unless it is clearly erroneous.

(Citations and punctuation omitted.) Waters v. State, 306 Ga.App. 114, 116(1), 701 S.E.2d 550 (2010).

Here, Durrance was asked to exit the vehicle, keep his hands visible, and allow himself to be patted down for weapons after he identified himself as a suspect in the domestic violence investigation. These actions did not amount to a formal arrest. See State v. Kipple, 294 Ga.App. 420, 421–422(1), 669 S.E.2d 185 (2008) (second-tier stop notwithstanding fact that officer ordered defendant out of the vehicle and conducted a pat-down search for personal safety). While Durrance correctly notes that he was not free to leave the scene at this point, he was not handcuffed or placed in the patrol car when questioned about the domestic disturbance or his consumption of alcohol. Under these circumstances, the trial court was authorized to find that a reasonable person would believe that his freedom of action was only...