Hernandez v. State
| Decision Date | 11 February 2019 |
| Docket Number | A18A1638 |
| Citation | 824 S.E.2d 67,348 Ga.App. 569 |
| Parties | HERNANDEZ v. The STATE. |
| Court | Georgia Court of Appeals |
Jeffrey Lloyd Wolff, Dahlonega, for Appellant.
William Jeffrey Langley, Samantha Lauren Barrett, for Appellee.
Amanda Hernandez appeals from the denial of her motion to suppress, as amended, the results of her blood test following her arrest for DUI. Because her consent to the blood test was premised on inaccurate information as to the consequences of refusing consent, we reverse the trial court’s judgment.
"[O]n a motion to suppress, the State has the burden of proving that a search was lawful." (Punctuation and footnote omitted.) State v. Hammond , 313 Ga. App. 882, 883-884, 723 S.E.2d 89 (2012) Thus, "when relying on the consent exception to the warrant requirement, the State has the burden of proving that the accused acted freely and voluntarily under the totality of the circumstances." (Citation and punctuation omitted) Williams v. State , 296 Ga. 817, 821, 771 S.E.2d 373 (2015). Where, as here, the relevant facts are undisputed, this Court’s review is de novo. State v. Oyeniyi , 335 Ga. App. 575, 575-576, 782 S.E.2d 476 (2016).
The facts as testified to at the motion to suppress hearing demonstrate that on October 2, 2015, Hernandez was stopped by a Georgia State Patrol trooper for speeding. Hernandez produced a valid Washington State driver’s license, but when the trooper noticed the odor of alcohol, he began a DUI investigation. The trooper requested that Hernandez exit her car, and as they talked, he noticed that, in addition to the "smell of alcohol," Hernandez "had a slight slur in her speech." Hernandez told the trooper that she was coming from a "local tavern" and had consumed a "few drinks" so he asked her to take a preliminary breath test ("PBT"). Hernandez complied and the BPT test was positive for breath alcohol. Hernandez also consented to the administration of field sobriety tests, resulting in six out of six possible clues in the horizontal gaze nystagmus test
, eight out of a possible eight clues in the walk-and-turn test, and three out of a possible four clues in the one-leg stand test. After the field sobriety tests were administered, the trooper advised Hernandez that she was being arrested for DUI, placed her in handcuffs, and then "went into reading the implied notice ... [for] over 21." The trooper testified that although at the time he read her the implied consent notice Hernandez "started to cry a little bit because ... she [was] being handcuffed and ... arrested," she did not appear to be afraid, confused or under any duress.
Only the events following Hernandez’s field sobriety tests and arrest were captured in an audiovisual recording of the traffic stop from the trooper’s dashboard camera introduced at the hearing.1 The recording shows that after placing Hernandez under arrest, the trooper read her the implied consent notice for age 21 and over, and Hernandez responded, "Okay, yes," when asked whether she would submit to state administered chemical testing of her blood. The trooper responded, "that’s a verbal yes." After the trooper informed Hernandez that he would be taking her to the hospital, she asked why and the following exchange ensued:
Approximately 11 minutes later, Hernandez again inquired about the reason for the blood test.
Hernandez then again agreed to the blood test in the following exchange:
The trooper transported Hernandez to a nearby hospital for the blood draw. At the hearing, he testified that Hernandez did not rescind her consent in the "two to three minutes" drive to the hospital, and that at the hospital Hernandez did not testify at the hearing.
On appeal, Hernandez contends that the trial court erred in denying her motion to suppress because although she had initially consented to providing a blood sample after the implied consent notice was read, during the ensuing discussions with the trooper, she withdrew her consent and only consented again when the trooper erroneously told her that her Washington license would be suspended if she refused.
The implied consent notice for drivers age 21 or over provides as follows:
Georgia law requires you to submit to the state administered chemical tests of your blood, breath, urine, or other bodily substances for the purpose of determining if you are under the influence of alcohol or drugs. If you refuse this testing, your Georgia driver’s license or privilege to drive on the highways of this state will be suspended for a minimum period of one year. Your refusal to submit to the required testing may be offered into evidence against you at trial. If you submit to testing and the results indicate an alcohol concentration of 0.08 grams or more, your Georgia driver’s license or privilege to drive on the highways of this state may be suspended for a minimum period of one year. After first submitting to the required state tests, you are entitled to additional chemical tests of your blood, breath, urine, or other bodily substances at your own expense and from qualified personnel of your own choosing. Will you submit to the state administered chemical tests of your [blood] under the Implied Consent Law?
(Emphasis supplied.) OCGA § 40-5-67.1 (b) (2). As it relates to...
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Melton v. State
...as here, the relevant facts are undisputed, this Court's review is de novo.(Citations and punctuation omitted.) Hernandez v. State , 348 Ga. App. 569, 569, 824 S.E.2d 67 (2019).The record shows that on December 24, 2017, a Gwinnett County police officer stopped Melton for speeding. The offi......