Koontz v. State

• Court: Georgia Court of Appeals
• Writing for the Court: Adams
• Citation: Koontz v. State, 617 S.E.2d 207, 274 Ga.App. 248 (Ga. App. 2005)
• Decision Date: 08 July 2005
• Docket Number: No. A05A0284.,A05A0284.
• Parties: KOONTZ v. The STATE.

274 Ga. App. 248

617 S.E.2d 207

KOONTZ v. The STATE.

No. A05A0284.

Court of Appeals of Georgia.

July 8, 2005.

Gregory W. Holt, Robins, for appellant.

Alan R. Tawse, Jr., Solicitor-General, Arthur J. Creque, Assistant Solicitor-General, for appellee.

ADAMS, Judge.

Jeffrey E. Koontz appeals following his conviction and sentence for driving without a license and driving under the influence of alcohol. He contends the trial court erred by failing to grant his motion to suppress the breath test results on the ground that the officer failed to accommodate his request for an independent test of his blood.

On appeal of a decision on a motion to suppress, "we construe the evidence in favor of the trial court's ruling, and the trial court's application of law to undisputed facts is subject to de novo review. [Cit.]" Taylor v. State, 263 Ga.App. 420, 422(2), 587 S.E.2d 791 (2003). See also Tate v. State, 264 Ga. 53, 54(1), 440 S.E.2d 646 (1994). Ultimately, this Court must ensure that there was a substantial basis for the decision. Sheehan v. State, 267 Ga.App. 152, 154, 598 S.E.2d 873 (2004); Hulsinger v. State, 221 Ga.App. 274, 275, 470 S.E.2d 809 (1996).

At about 2:00 a.m. on August 2, 2002, Deputy James Williams of the Houston County Sheriff's Department saw Koontz fail to maintain his lane. Koontz then parked in a bank parking lot, and Williams followed and approached Koontz. Williams noticed that Koontz was unsteady on his feet and had blood-shot eyes, slurred speech, and a strong odor of alcohol. He was also driving without a license. Koontz said that he had had a total of about four beers over the course of a couple of hours. He then submitted to a series of field sobriety tests, following which he was arrested for driving under the influence of alcohol with a blood alcohol level of 0.08 or more and read the implied consent notice. Deputy Williams requested a breath test, and Koontz agreed. The test returned readings of 0.113 and 0.116.

Following the breath test, Koontz requested an independent blood test but he did not have any money on him. Williams offered to take him to the hospital or any qualified place of his choice, and Koontz said, "hospital." Williams took Koontz to an automated teller machine to get money and then to the Houston Medical Center where Williams knew from ten or twelve prior similar incidents that Koontz would only be able to have his blood drawn but not tested at 2:00 or 3:00 in the morning.

At the medical center, Koontz registered, paid, and had his blood drawn; then the sample was placed in a container, sealed, and given back to Koontz, who was then taken back to the sheriff's office and then the detention center. Koontz did not ask for any further assistance from Deputy Williams about getting the blood tested or storing it, nor did Williams offer any, but Williams testified that he did not know of any place that one could get blood tested at that hour. Williams had on other occasions held the sample for the person and taken it to a lab in Macon during business hours, and he testified that an accused can take the sealed sample to be tested or have him take it to be tested at a later date; but Koontz did not inquire about that nor did Williams offer. Moreover, the state did not introduce admissible evidence to show specifically whether and under what circumstances a blood sample can be stored and tested at a later time. Williams also testified that he has never taken anyone to two other nearby hospitals in an effort to accommodate a request for an independent blood test, however no evidence was presented to show that either hospital had a different policy. There is no evidence that Koontz ever got his sample tested or of what became of the sample. He did not testify at the hearing on the motion to suppress or at trial.

OCGA § 40-6-392(a)(3) gives a person accused of driving under the influence a right to have an independent chemical "test or tests" by a qualified person of his or her own choosing. The statute further provides that, "[t]he justifiable failure or inability to obtain an additional test shall not preclude the admission of evidence relating to the test or tests taken at the direction of a law enforcement officer." "The state has the burden of showing it complied with the requirements of OCGA § 40-6-392(a)(3)." Joel v. State, 245 Ga.App. 750, 753, 538 S.E.2d 847 (2000). Thus it is incumbent on the trial court to determine, based on the totality of the circumstances, whether the failure or inability to obtain the independent test was justified, in other words, did the officer make a reasonable effort to accommodate the accused. State v. Buffington, 189 Ga.App. 800, 801, 377 S.E.2d 548 (1989).

Four cases from this Court have clarified the law regarding an officer's duty to accommodate a person who has requested an independent test when the independent test cannot be accomplished at the first facility visited. See Cole v. State, 263 Ga.App. 222, 587 S.E.2d 314 (2003); Hulsinger v. State, 221 Ga.App. 274, 470 S.E.2d 809; State v. Button, 206 Ga.App. 673, 426 S.E.2d 194 (1992); O'Dell v. State, 200 Ga.App. 655, 409 S.E.2d 54 (1991).

In O'Dell v. State, the officer unjustifiably refused O'Dell's repeated requests to call other hospitals after a nurse at the closest hospital indicated that the test obtained there would not be admissible in court. 200 Ga.App. at 655, 409 S.E.2d 54. We reversed the denial of a motion to suppress and held that a request for an independent test must be construed as one for a "legally admissible blood test." Id. Furthermore, the officer's innocent mistake in assuming that no other hospitals in the area could perform such a test was not relevant. Id. at 657, 409 S.E.2d 54.

In State v. Button, unbeknownst to the officer, the hospital he chose for the test had a policy of not performing blood alcohol tests. 206 Ga.App. at 674, 426 S.E.2d 194. This Court affirmed suppression of the breath test because the officer failed to offer any further assistance after the hospital drew Button's blood but refused to test it. Id. at 675, 426 S.E.2d 194. Again, the officer's innocent misunderstanding was not relevant. The Court held, "a blood sample is not the same as a legally admissible blood test, regardless of whether the blood sample could conceivably have been later used to obtain an independent test." Id. at 675, 426 S.E.2d 194. Accordingly, after the officer learned of the policy, "failure to take [Button] to another hospital for a legally admissible independent blood test ... was not reasonable under all the circumstances," and this was true even though Button did not make any further requests for assistance. Id. at 674-675, 426 S.E.2d 194.

In Hulsinger v. State, the officer gave Hulsinger a phone and a phone book, and...