Kitchens v. State

• Citation: 258 Ga. App. 411,574 S.E.2d 451
• Decision Date: 18 November 2002
• Docket Number: No. A02A1494.,A02A1494.
• Parties: KITCHENS v. The STATE.
• Court: United States Court of Appeals (Georgia)

574 S.E.2d 451

258 Ga. App. 411

KITCHENS v. The STATE.

No. A02A1494.

Court of Appeals of Georgia.

November 18, 2002.

Head, Thomas, Webb & Willis, William C. Head, Atlanta, for appellant.

David McDade, Dist. Atty., Christopher R. Johnson, Asst. Dist. Atty., for appellee.

POPE, Senior Appellate Judge.

Defendant Mary Cloyd Kitchens was convicted following a bench trial of driving under the influence of alcohol to the extent that she was a less safe driver, failure to maintain lane, and driving with an expired license. She appeals, arguing that the trial court erred in admitting the results of the state-administered breath test into evidence because the implied consent warning read to her by the arresting officer was misleading, inaccurate, and coercive and that the evidence was insufficient to support her conviction for "less safe" DUI.¹

As is relevant to this appeal, the transcript shows the following: Officer Greg Holcomb of the Villa Rica Police Department testified that on December 7, 2000, he received a call to be on the lookout for a white Ford Explorer with Alabama license plates traveling east on I-20. He spotted a vehicle matching that description and, after verifying the license plates and following the vehicle a "little way," activated his blue lights and flashing headlights. The videocamera inside his patrol car was also activated. Officer Holcomb testified that he decided to activate his lights because the vehicle was "weaving over the roadway, crossed the fog line, also crossed the centerline," and that he observed the vehicle weave on numerous occasions. He continued to follow the vehicle, which did not stop until he pulled beside it and activated his siren.

Officer Holcomb requested license and insurance information from the driver of the vehicle, defendant Kitchens. Officer Holcomb testified that the driver's license was issued by the State of Alabama and had expired. The videotape shows that Officer Holcomb remarked to Kitchens that her eyes were bloodshot and that the odor of alcohol was "extremely heavy, extremely heavy," and that she replied that she had just "taken some Listerine." Officer Holcomb then requested that Kitchens perform several field sobriety tests, based on his observations of her driving, odor of alcohol, and bloodshot eyes. Officer Holcomb testified and the videotape of the stop shows that Kitchens stumbled against the side of her vehicle as she was exiting and that she could not correctly recite the alphabet. Officer Holcomb also administered an Alco-Sensor test, which registered positive for alcohol. Officer Holcomb then placed Kitchens under arrest for driving under the influence.

Officer Holcomb read Kitchens Georgia's Implied Consent Warnings. While he was reading the warning, Officer Holcomb informed Kitchens that if "the results indicate an alcohol concentration of 10 grams or more," her Georgia driver's license or privilege to drive on Georgia highways may be suspended for one year. After Officer Holcomb completed the warning, he asked Kitchens if she would submit to the state's test, and if she understood what he had just stated to her. Kitchens responded, "I'm not sure what you just said." Officer Holcomb then attempted to explain the notice and informed Kitchens that her "license to drive in the State of Georgia" would be suspended if she refused to take the test, and "[i]f the results indicate ten or more," her license may be suspended. After this explanation, Kitchens again told Officer Holcomb she was not sure if she understood "exactly what you said," and subsequently indicated, "you have very much confused me." Officer Holcomb informed Kitchens she had two choices, to take the test or not take the test, in which case "you're automatically charged with DUI and your license [is] going to be suspended." Kitchens then indicated that she would take the test.

The results of the state's breath test indicated Kitchens' blood alcohol level was 0.199. The trial court denied Kitchens' motion to exclude the results of the test and found her guilty of driving under the influence to the extent that she was a less safe driver.

1. Kitchens first argues that the trial court erred by denying her motion to exclude the results of the state-administered test because the implied consent warning was misleading, inaccurate, and coercive.

As stated above, the videotape of the stop and arrest shows that when Officer Holcomb read the implied consent warning, he overstated the legal limit indicating that it was 10 grams instead of 0.10 grams of alcohol concentration. The record further shows that after Kitchens indicated she did not understand the implied consent, Officer Holcomb again incorrectly advised Kitchens that the legal limit was 10 grams instead of 0.10 grams.

Moreover, Officer Holcomb also gave Kitchens incorrect information concerning the consequences if she refused to take the test. The transcript shows that Officer Holcomb initially correctly informed Kitchens, who held an Alabama driver's license, that her Georgia driver's license or privilege to drive on the highways of this state would be suspended for one year if she did not submit to the state's test, but during his subsequent explanation of her rights stated, "[s]o your second choice is to ... not ... take that test. And once you do that, you're automatically charged with a DUI and your license [is] going to be suspended." Kitchens then agreed to take the test.

We find the trial court erred in failing to exclude the test results in this case. Because the laws of this state no longer require that the implied consent warning be read exactly so long as the substance of the notice remains unchanged, OCGA § 40-5-67.1(b)(3), we must now determine

whether the notice given was substantively accurate so as to permit the driver to make an informed decision about whether to consent to testing. In Garrett v. Dept. of Public Safety, [237 Ga. 413, 415(2), 228 S.E.2d 812 (1976),] we recognized that the purpose of the implied consent law is to notify drivers of their rights so that they can make informed decisions. Accordingly, we have suppressed the results of chemical tests where the driver was misinformed of his rights and where that misinformation may have affected his decision to consent. In State v. Coleman, [216 Ga. App. 598, 599, 455 S.E.2d 604 (1995),] for example, we held that suppression was required where an out-of-state driver was wrongly told that he would lose his driver's license if he refused testing. Likewise, we have suppressed evidence of the driver's refusal to consent where that refusal may have resulted from misleading information. In State v. Terry, [236 Ga.App. 248, 511 S.E.2d 608 (1999),] for instance, we affirmed the suppression of evidence of a driver's refusal to take a blood test where police falsely informed her that obtaining bond was a pre-condition to independent testing. We agreed with the trial court that the misinformation was confusing and could have affected the driver's decision to refuse testing.

(Footnotes omitted.) State v. Becker, 240 Ga.App. 267, 271(2), 523 S.E.2d 98 (1999).

In this case, we cannot say that the substance of the notice given was substantially accurate. When he read the warning and when he explained it to Kitchens, Officer Holcomb substantially altered the substance of the notice by overstating the legal limit of blood alcohol concentration to be 10 grams instead of 0.10 grams. This court has previously recognized that overstatement, as opposed to understatement, of the legal limit of blood alcohol concentration is the type of misinformation that might cause someone to submit to testing who might otherwise refuse. See Maurer v. State, 240 Ga.App. 145, 147(2), 525 S.E.2d 104 (1999). The state argues, however, that there is nothing in this case to show that the erroneous overstatement of the legal limit led Kitchens to submit to testing. We find this argument unpersuasive.

"To accept the State's arguments, we must first find that the [language concerning the legal limit] is superfluous. This we refuse to do. We do not believe substantial compliance means that it is permissible to ignore completely the `particulars' of the laws of this state or that it is permissible to ignore statutory requirements as long as no harm is shown. `The ... requirement is that when the State seeks to prove the violation by evidence of a chemical test, the State has the burden of demonstrating...