Hynes v. State, A17A0633

• Decision Date: 31 May 2017
• Docket Number: A17A0633
• Citation: 801 S.E.2d 306
• Parties: HYNES v. The STATE.
• Court: Georgia Court of Appeals

341 Ga.App. 500

801 S.E.2d 306

HYNES

v.The STATE.

A17A0633

Court of Appeals of Georgia.

May 31, 2017

Erin H. Gerstenzang, Atlanta, Andrew Santos Fleischman, for Appellant.

Carlton Todd Hayes, Jessica K. Moss, Gainesville, Benjamin James Huntington, Canton, for Appellee.

Self, Judge.

James Hynes was charged with failure to maintain lane, driving under the influence of alcohol (DUI) less safe, and DUI per se. He filed a motion to suppress the results of a blood test administered pursuant to a search warrant. Following a hearing, the trial court denied the motion. We granted Hynes's application for interlocutory appeal, and after reviewing the record and hearing transcript, we affirm for the reasons set forth below.

The evidence in this case shows that on April 6, 2016, a deputy with the Cherokee County Sheriff's Office observed Hynes weaving across the center line of Bells Ferry Road. The deputy conducted a traffic stop and smelled a "heavy odor of alcohol" on Hynes's breath. During his conversation with the deputy, Hynes first stated he had consumed "zero" alcohol, but later admitted to drinking two glasses of wine. Hynes refused to participate in field sobriety testing, but eventually let the officer perform the horizontal gaze nystagmus test, in which Hynes exhibited all six indicators. The deputy placed Hynes under arrest, read the implied consent notice for drivers over the age of 21, and then asked Hynes if he would submit to a blood test. Hynes refused the state-administered test, but stated that he would "do an independent test." The deputy obtained and executed a search warrant for a blood test. The deputy testified that he did not permit Hynes to obtain an independent test because "he refused implied consent."

The transcript of the hearing on the motion to suppress includes the following colloquy between the State and the deputy:

Q: What was his answer to the implied consent card?

A: He refused State testing.

Q: Did he ever ask for an independent test?

A: He never directly asked for one, no.

Q: Okay. Did you take him to get an independent test?

A: I did not, as he refused implied consent.

Later, the following exchange occurred between Hynes's attorney and the deputy:

Q: Now, let's talk about after you arrest him and you read him implied consent, he tells you in response that he'll do an independent test, is that right?

A: Uh-huh ... Yes, ma'am, he does.

Q: And do you recall hearing him on the video say, you asked him to confirm, you will do an independent test? Do you remember asking him that?

A: Yes, I believe that's on the video.

Q: And he responded, yes. Is that right?

A: He said he would do an independent test, yes, ma'am.

Q: Okay. At any point thereafter was a test administered in this case?

A: A test was administered after a search warrant was completed.

Q: Okay. And what kind of test was that?

A: It was a blood test.

Q: All right. And after the blood test was administered, was there any effort made to accommodate an independent test?

A: No, ma'am, because he refused implied consent.

Hynes moved to suppress the results of the blood test because the deputy refused to honor his request for an independent test. Hynes argued that his right to an independent test under OCGA § 40-6-392 (a) (3) is not contingent upon his submission to a state-administered test. The trial court denied the motion, ruling that a "[d]efendant's right to an independent test accrues only upon the [d]efendant's consent to the State's test as requested after the reading of the [i]mplied [c]onsent card."

In his sole enumeration of error, Hynes contends that the trial court erred in ruling that OCGA § 40-6-392 (a) (3) does not grant a driver the right to an independent test when the officer obtains a search warrant for a blood test. Hynes argues that the trial court should have granted his motion to suppress the results of the blood test performed pursuant to a search warrant because OCGA § 40-6-392 (a) (3) merely requires that a test be administered at the direction of a law enforcement officer before the right to an independent test accrues and does not make an exception for chemical tests administered pursuant to search warrants. In other words, according to Hynes, he was entitled to an independent test because under the plain language of OCGA § 40-6-392 (a) (3), a chemical test performed pursuant to a search warrant comes within the definition of "any administered at the direction of a law enforcement officer."

The State argues that OCGA § 40-6-392 (a) (3) does not create the right to an independent test for defendants whose blood is drawn pursuant to a search warrant. The State points out that OCGA § 40-6-392 (a) does not apply in its entirety to cases where a chemical test was conducted pursuant to a search warrant. The State also contends that OCGA § 40-6-392 (a) (3) must be read in concert with subsection (a) (4) (requiring an implied consent warning to be read) and OCGA § 40-5-67.1 (containing the language of the warning), which make clear that an independent test is triggered only after a defendant consents to take a test pursuant to the implied consent statute.

The question of whether a DUI suspect has the right to an independent test when that suspect refuses a test under the implied consent law, but is then tested pursuant to a search warrant, appears to be one of first impression in Georgia.¹ We conduct a de novo review of the trial court's negative answer to this question. Jones v. State , 291 Ga. 35, 36-37 (1), 727 S.E.2d 456 (2012) ("When the evidence at a suppression hearing is uncontroverted and the credibility of witnesses is not in question, we conduct a de novo review of the trial court's application of the law to the undisputed facts."). We begin our analysis by delineating a few basic principles related to implied consent and the rules of statutory construction.

Implied Consent

In Williams v. State , 296 Ga. 817, 771 S.E.2d 373 (2015), the Georgia Supreme Court explained that

[a DUI] suspect's right under the Fourth Amendment to be free of unreasonable searches and seizures applies to the compelled withdrawal of blood, and the extraction of blood is a search within the meaning of the Georgia Constitution. In general, searches are of two types: those conducted with a search warrant or those undertaken without one, and searches conducted outside the judicial process are per se unreasonable under the Fourth Amendment, subject only to a few specifically established and well-delineated exceptions.

(Citations and punctuation omitted.) Id. at 819, 771 S.E.2d 373. The United States Supreme Court in Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966), recognized the presence of "exigent circumstances" as the first exception to the warrant requirement in the context of a blood test taken by a physician while defendant was in the hospital after being arrested, ruling that a warrantless blood draw may be appropriate where the officer was confronted with an emergency which threatened " ‘the destruction of evidence.’ " Id. at 770-771 (IV), 86 S.Ct. 1826. See also Missouri v. McNeely , 569 U.S. 141, 133 S.Ct. 1552, 185 L.Ed.2d 696 (2013) (rejecting per se rule of admissibility of warrantless blood draws based upon exigent circumstances). Another exception to the warrant requirement is a search pursuant to consent. See Cooper v. State , 277 Ga. 282, 291 (VI), 587 S.E.2d 605 (2003). Georgia's implied consent law is based on this exception. See id.

In codifying Georgia's implied consent law, our General Assembly declared as a matter of law that persons in control of any moving vehicle while having an illegal blood alcohol concentration "constitute[ ] a direct and immediate threat to the welfare and safety of the general public." OCGA § 40-5-55. Accordingly,

any person who operates a motor vehicle upon the highways or elsewhere throughout this state shall be deemed to have given consent, subject to Code Section 40-6-392, to a chemical test or tests of his or her blood, breath, urine, or other bodily substances for the purpose of determining the presence of alcohol or any other drug, if arrested for any offense arising out of acts alleged to have been committed in violation of Code Section 40-6-391 or if such person is involved in any traffic accident resulting in serious injuries or fatalities. The test or tests shall be administered at the request of a law enforcement officer having reasonable grounds to believe that the person has been driving or was in actual physical control of a moving motor vehicle upon the highways or elsewhere throughout this state in violation of Code Section 40-6-391. The test or tests shall be administered as soon as possible to any person who operates a motor vehicle upon the highways or elsewhere throughout this state who is involved in any traffic accident resulting in serious injuries or fatalities. Subject to Code Section 40-6-392, the requesting law enforcement officer shall designate which of the test or tests shall be administered, provided a blood test with drug screen may be administered to any person operating a motor vehicle involved in a traffic accident resulting in serious injuries or fatalities.

Id. This Code section is part of the implied consent statutory scheme which also includes OCGA §§ 40-5-67.1 and 40-6-392. See Massey v. State , 331 Ga.App. 430, 431-434, 771 S.E.2d 122 (2015).

OCGA § 40-5-67.1 provides the specific implied consent notice to be given by the officer to the driver, including "information regarding consequences for refusing the testing requested by the officer, and the driver's right to obtain additional chemical testing after submitting to the testing requested by the officer."Massey , supra at 430-433 (1), 771 S.E.2d 122. And OCGA § 40-6-392 governs the admissibility of chemical tests in cases alleging the violation of OCGA § 40-6-391, including regulating the procedures and methodology of chemical analysis,² and provides in relevant part:

(a) Upon the trial of any civil

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