State v. Chun, A04A0343.

• Decision Date: 11 February 2004
• Docket Number: No. A04A0343.,A04A0343.
• Citation: 594 S.E.2d 732,265 Ga. App. 530
• Parties: The STATE v. CHUN.
• Court: Georgia Court of Appeals

594 S.E.2d 732

265 Ga. App. 530

The STATE v. CHUN.

No. A04A0343.

Court of Appeals of Georgia.

February 11, 2004.

Certiorari Denied May 24, 2004.

Gwendolyn R. Keyes, Solicitor-General, Andrew R. Fiddes, Asst. Solicitor-General, for appellant. Head, Thomas, Webb & Willis, Gregory A. Willis, Atlanta, for appellee.

ELLINGTON, Judge.

On March 23, 2003, a DeKalb County police officer arrested Jeana Pan Chun for speeding, OCGA § 40-6-181, and driving under the influence of alcohol to the extent that it was less safe to drive, OCGA § 40-6-391(a)(1). Prior to trial, Chun filed a motion in limine to exclude the evidence that she refused to submit to State-administered chemical testing. The trial court granted Chun's motion after concluding that the arresting officer gave "technically correct" but misleading information in addition to the implied consent notice which impaired Chun's ability to decide whether to submit to testing. The State of Georgia appeals from the trial court's order. Because we find no substantial basis for the trial court's ruling, we reverse.

"Where the evidence at a hearing on a motion in limine is uncontroverted, and no issue exists regarding the credibility of witnesses, we review the trial court's ruling to ensure that there was a substantial basis for it. The trial court's application of the law to the undisputed facts is subject to de novo review." (Citations and punctuation omitted.) State v. Terry, 236 Ga.App. 248, 249, 511 S.E.2d 608 (1999). "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." (Citation and punctuation omitted.) Leiske v. State, 255 Ga.App. 615, 617(2), 565 S.E.2d 925 (2002). 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. State v. Peirce, 257 Ga.App. 623, 625(1), 571 S.E.2d 826 (2002). The suppression of evidence, however, is an extreme sanction and one not favored in the law. State v. Kampplain, 223 Ga.App. 16, 18, 477 S.E.2d 143 (1996).

The evidence presented at the hearing on Chun's motion in limine shows that the officer stopped Chun for driving approximately 80 mph in a 55-mph zone. The officer observed various indicators that Chun was under the influence of alcohol, including slurred speech and red, watery eyes, and Chun admitted to having had three drinks. Following Chun's failure of field sobriety tests and a positive result on the alco-sensor test, the officer arrested her for DUI. The officer read the proper informed consent notice to Chun. See OCGA § 40-5-67.1(b)(2) (notice for drivers 21 years old and over). After the officer initially read the notice, Chun asked him whether her license would be suspended if she refused to submit to chemical testing. Chun also expressed some concern about what would happen if she submitted to the test and had a result under 0.08 grams. In response to Chun's questions, the officer reread part of the notice, and explained that if she refused the chemical test, her license would be suspended for one year; that if she took the test and registered 0.08 or higher, her license would be suspended; and, even if she took the test and registered lower than 0.08, her license could be suspended if she was convicted of DUI at trial. Chun refused to submit to the test. Later, at the police station, the officer again read Chun the implied consent notice, and Chun declined to be tested. Chun did not testify at the hearing.

In ruling on Chun's motion in limine, the court concluded that the officer's response to Chun's question about a test result lower than 0.08 grams was misleading because the officer did not also advise Chun "that if she blew lower than 0.08, her license would not be administratively suspended, or that her license would not be suspended if she were not convicted at trial." According to the court, the officer's statement that Chun's license could be suspended if she is convicted of DUI, "although technically correct, suggested that [Chun's] license would be suspended whether or not she chose to take the chemical test." The court decided that, as a result of this "misleading" information, Chun "was unable to make an informed choice" about whether to refuse testing, which made her refusal inadmissible at trial. The State challenges the court's ruling, contending the officer gave accurate answers in response to Chun's questions, that the information was not false or misleading, and that it correctly communicated the legitimate consequences of either Chun's submission to chemical testing or her refusal to submit...