Handschuh v. State

• Decision Date: 01 December 2004
• Docket Number: No. A04A0838.,A04A0838.
• Citation: 607 S.E.2d 899,270 Ga. App. 676
• Parties: HANDSCHUH v. The STATE.
• Court: Georgia Court of Appeals

607 S.E.2d 899

270 Ga. App. 676

HANDSCHUH v. The STATE.

No. A04A0838.

Court of Appeals of Georgia.

December 1, 2004.

Sexton & Morris, Joseph S. Key, Stockbridge, for appellant.

Steven L. Harris, Solicitor-General, for appellee.

BARNES, Judge.

Following his jury convictions for driving under the influence and failure to maintain a lane, Bryan Reid Handschuh appeals the denial of his motion for new trial, contending that the trial court erred in denying his motion to suppress, failing to excuse a juror for cause, and considering a Georgia Crime Information Center printout in sentencing. Because the Supreme Court of Georgia found unconstitutional that portion of the statute on which the trial court relied in admitting evidence of Handschuh's refusal to take a blood test, we reverse his conviction for DUI.

In reviewing denial of a motion to suppress or in limine, we apply the following 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 them. 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.

(Citations, punctuation and emphasis omitted.) Brittian v. State, 257 Ga.App. 729-730, 572 S.E.2d 76 (2002).

So viewed, the record demonstrates that on January 31, 2003, at approximately 5:46 a.m., a Fayette County police officer was dispatched to the scene of an automobile accident. When he arrived he saw Handschuh's overturned Ford Ranger truck approximately 200 feet off the side of the embankment of a main road. When the officer approached the vehicle, he noticed a strong odor of alcohol emanating from the truck. Handschuh, who was pinned inside the truck, repeatedly said that he was an organ donor, and asked the officer to call his parents and tell them that he loved them, but he was unresponsive to any other questions. The officer thought that Handschuh might have a head injury or might be intoxicated.

After emergency personnel arrived and freed Handschuh, he was transported to a local hospital. Although externally he did not appear to have any serious injuries, the EMTs told the officer that he was not responding to pain stimuli in his lower extremities. After Handschuh was transported to the hospital, the officer investigated the accident site and recovered from the truck an opened bottle of Crown Royal liquor and several unopened cans of beer from the truck. Handschuh's truck was equipped with an ignition interlock device.

The officer went to the hospital to question Handschuh, and noticed the odor of alcohol on Handschuh's breath. The officer also noted that Handschuh's speech was slurred, he was combative with the EMT and hospital personnel, and he repeatedly demanded to be released from the hospital. The officer testified that he "told [Handschuh] about his injuries and the seriousness of his injuries, and I said I've got to read something to you. It's called Implied Consent notice, suspects age 21 and over." He then read Handschuh the implied consent notice. Handschuh did not respond to the officer, and when a technician from the hospital came to draw his blood, he refused to cooperate. The officer told Handschuh that his actions constituted a refusal. Handschuh was arrested six days later and charged by accusation with driving under the influence, failure to maintain a lane, and violating the open container law.

Before trial, he filed a motion in limine and to suppress all evidence of his refusal to submit to the blood test. The trial court denied the motion and admitted evidence of the refusal, finding that,

there had not been a formal arrest at the time the Implied Consent rights were read. However, I do feel that the officer had probable cause to arrest. I also believe that the officer had probable cause to believe and suspect that there was a serious physical injury at the time. Based upon that, I think he was justified under 40-5-55 of the Official Code of Georgia to request said test. For that reason and others, I'm going to deny the motion to suppress on that issue.

A jury convicted Handschuh of DUI and failure to maintain his lane, and acquitted him of the open container violation.

1. OCGA § 40-5-55(a), provides that a person who drives a vehicle in Georgia is deemed to have given consent to a chemical test of his blood for the purpose of determining the presence of alcohol or any other drug, if (1) he is arrested for any offense arising out of acts alleged to have been committed in violation of OCGA § 40-6-391,¹ or if (2) he is involved in any traffic accident resulting in serious injuries or fatalities. In October 2003, our Supreme Court held in Cooper v. State, 277 Ga. 282, 587 S.E.2d 605 (2003), that OCGA § 40-5-55(a) is unconstitutional to the extent it requires chemical testing of the driver of a vehicle involved in a traffic accident resulting in serious injuries or death regardless of any probable cause determination. The Supreme Court reasoned that the provision violates the Fourth and Fourteenth Amendments of the Constitution of the United States because it authorizes a search and seizure without probable cause.

Handschuh contends the trial court should have granted his motions to suppress because his refusal was admitted under OCGA § 40-5-55, which per Cooper, is unconstitutional to the extent that it requires the chemical testing of the operator of a motor vehicle involved in a traffic accident resulting in serious injuries or fatalities.² We agree.

The trial court specifically held that Handschuh's testing was performed pursuant to the provision in OCGA § 40-5-55(a) that requires chemical testing, even in the absence of probable cause, of anyone driving a motor vehicle who "is involved in any traffic accident resulting in serious injuries or fatalities." Handschuh was not under arrest, and the officer testified that he read Handschuh his implied consent rights because of the "seriousness of his injuries."

"We note that the facts arguably would have supported the giving of an implied consent notice based on an alleged violation of OCGA § 40-6-391. However, the statute, as it now stands, provides that consent is implied only if a person is arrested for a violation of OCGA § 40-6-391." (Footnote omitted; emphasis in original) Buchanan v. State, 264 Ga.App. 148, 150(1), 589 S.E.2d 876 (2003). It is important to note that, while probable cause of DUI may provide the impetus to give the implied consent warning, under OCGA § 40-5-55(a) the implied consent test is only upheld where an arrest has actually been effectuated. See Ferguson v. State, 277 Ga. 530, 590 S.E.2d 728 (2003); Cooper v. State, supra, 277 Ga. 282, 587 S.E.2d 605; Oliver v. State, 268 Ga.App. 290, 601 S.E.2d 774 (2004).

Moreover, even if, as the trial court found, there was probable cause to arrest for a violation of OCGA § 40-6-391, Handschuh was not arrested until six days later. And, "under ordinary circumstances, the implied consent warning must be given at the time of the arrest, or at a time as close in proximity to the instant of arrest as the circumstances of the individual case might warrant." (Punctuation and footnote omitted.) Crawford v. State, 246 Ga.App. 344, 345(1), 540 S.E.2d 300 (2000). That being so, an implied consent given for an arrest six days later is clearly too soon. Id.; see also Kahl v. State, 268 Ga.App. 879, 602 S.E.2d 888 (2004).

In this regard, Handschuh's implied consent was given pursuant to the provision in OCGA § 40-5-55(a) that required chemical testing of one "involved in any traffic accident resulting in serious injuries of fatalities." A showing that the implied consent notice was given was a necessary foundation for admission of evidence of Handschuh's refusal. Thus, because this notice was given pursuant to Handschuh's injuries, rather than violation of OCGA § 40-6-391, his refusal must be excluded, and the trial court erred in denying Handschuh's motion to suppress.

Moreover, it cannot be said that the admission of Handschuh's refusal was harmless. "[I]t is fundamental that harm as well as error must be shown for reversal." (Citation omitted.) Matthews v. State, 268 Ga. 798, 803(4), 493 S.E.2d 136 (1997). Here, the evidence of Handschuh's guilt was not overwhelming. Although the deputy testified that he smelled alcohol emanating from Handschuh, and Handschuh was belligerent and had slurred speech, he also admitted that the belligerence and slurred speech could have had other causes, such as a head injury. Furthermore, Handschuh's witness testified that they were together from about midnight until 4:00 or 5:00 a.m., and Handschuh, who was the designated driver, did not drink any alcohol that night. He said that Handschuh had an ignition interlock device on his truck, and he saw Handschuh blow into the device on several different occasions that night and the truck always started. In the absence of field sobriety tests and other evidence of intoxication, it is highly probable that the evidence of Handschuh's refusal contributed to the jury's verdict of guilt. Id.

Accordingly, we reverse Handschuh's conviction for DUI. Handschuh does not, however, challenge his failure to maintain a lane conviction, and it is thus affirmed.

As a result of statements in certain cases³ suggesting that the existence of probable cause without an arrest is sufficient to trigger the implied consent warnings in OCGA § 40-5-55(a), we must address that issue. In considering whether probable cause alone is sufficient, we must keep in mind the background of our implied consent statute. In Cooper...