McHugh v. State

• Decision Date: 17 April 2007
• Docket Number: No. A07A0323.,A07A0323.
• Parties: McHUGH v. The STATE.
• Court: Georgia Court of Appeals

285 Ga. App. 131

645 S.E.2d 619

McHUGH v. The STATE.

No. A07A0323.

Court of Appeals of Georgia.

April 17, 2007.

Robert W. Chestney, Atlanta, for appellant.

Shawn Ellen LaGrua, Solicitor-General, Thomas J. Ludlam, Assistant Solicitor-General, for appellee.

BERNES, Judge.

After the denial of his motion in limine and his subsequent bench trial, Gregory R McHugh was convicted of driving with an unlawful alcohol concentration and speeding. McHugh appeals, contending that the trial court erred in denying his motion in limine to exclude the results of a state-administered breath test. According to McHugh, he was misinformed by the arresting officer that if he refused to take the breath test, his out-of-state driver's license would be suspended. We disagree and affirm.

The parties have stipulated to the facts surrounding McHugh's arrest. "Where the evidence is uncontroverted and no question regarding the credibility of witnesses is presented, the trial court's application of the law to undisputed facts is subject to de novo appellate review." (Citation and punctuation omitted.) Stapleton v. State, 279 Ga.App. 296(1), 630 S.E.2d 769 (2006).

So viewed, the record reflects that on March 26, 2006 at approximately 2:21 a.m., an officer with the DeKalb County Police Department observed McHugh's vehicle speeding and initiated a traffic stop. McHugh admitted to the officer that he had been drinking alcohol, and the officer smelled a strong odor of alcoholic beverage coming from the vehicle and observed that McHugh's face was flushed and his eyes were watery. Upon request, McHugh produced a valid Pennsylvania driver's license. After conducting a series of field sobriety tests, the officer concluded that McHugh was under the influence of alcohol and placed him under arrest.

Immediately after the arrest, the officer prepared to read McHugh the implied consent notice for suspects age 21 or over, codified at OCGA § 40-5-67.1(b)(2) (the "Implied Consent Notice"). Prior to doing so, the officer stated that what he was about to read "deals with your license to drive and your privilege to drive in Georgia, okay?"¹ Following this initial statement, the officer accurately read verbatim the Implied Consent Notice, which included the following:

Georgia law requires you to submit to 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.

(Emphasis supplied.) OCGA § 40-5-67.1(b)(2). The officer designated a breath test as the state-administered chemical test that would be offered to McHugh.

McHugh agreed to take the state-administered breath test, which was administered properly and reflected an alcohol concentration above the legal limit of 0.08 grams. See OCGA § 40-6-391(a)(5). McHugh did not request an independent test. Based on the results of the breath test, McHugh was arrested and charged with several offenses, including driving with an unlawful alcohol concentration and speeding.

McHugh subsequently filed a motion in limine seeking to exclude the results of the breath test. McHugh argued that the arresting officer had misinformed him that a refusal to consent would result in the suspension of his Pennsylvania driver's license. The trial court denied the motion, and after a bench trial on stipulated facts McHugh was convicted. This appeal followed, in which McHugh argues that the trial court erred in denying his motion in limine.

The determinative issue with the implied consent notice is whether the notice given was substantively accurate so as to permit the driver to make an informed decision about whether to consent to testing. Even when the officer properly gives the implied consent notice, if the officer gives additional, deceptively misleading information that impairs a defendant's ability to make an informed decision about whether to submit to testing, the defendant's test results or evidence of his refusal to submit to testing must be suppressed. The suppression of evidence, however, is an extreme sanction and one not favored in the law.

(Citations and punctuation omitted.) State v. Chun, 265 Ga.App. 530, 531, 594 S.E.2d 732 (2004).

The Georgia Department of Public Safety cannot suspend the driver's license of a nonresident; rather, it is limited to revoking or suspending "the non-resident's privilege of driving a motor vehicle on the highways of this state." (Citation omitted; emphasis omitted.) State v. Coleman, 216 Ga.App. 598, 599, 455 S.E.2d 604 (1995). See also Deckard v. State, 210 Ga.App. 421, 422, 436 S.E.2d 536 (1993). As such, in several cases we have held that suppression of test results is required when the holder of an out-of-state driver's license is told by a law enforcement officer that his license will be suspended for refusing to submit to the test. See Kitchens v. State, 258 Ga. App. 411, 412-415(1), 574 S.E.2d 451 (2002); State v. Peirce, 257 Ga.App. 623, 625-627(1), 571 S.E.2d 826 (2002); State v. Renfroe, 216 Ga.App. 709, 709-710, 455 S.E.2d 383 (1995); Coleman, 216 Ga.App. at 599-600, 455 S.E.2d 604; Deckard, 210 Ga.App. at 422-423, 436 S.E.2d 536.

According to McHugh, the arresting officer's initial statement to him before reciting the Implied Consent Notice was false and misleading, since the officer advised him that the statutory notice he was about to hear would "deal[] with [his] license to drive." McHugh maintains that the officer's initial...