State v. Clay

• Citation: 339 Ga.App. 473,793 S.E.2d 636
• Parties: The STATE v. CLAY
• Decision Date: 15 November 2016
• Court: United States Court of Appeals (Georgia)

339 Ga.App. 473
793 S.E.2d 636

The STATE
v.
CLAY

Court of Appeals of Georgia.

November 15, 2016

793 S.E.2d 637

Margaret Heap, Burt Anthony Burton, for Appellant.

Justin David Maines, Savannah, for Appellee.

McMillian, Judge.

339 Ga.App. 473

The State appeals the trial court's order granting Henry Franklin Clay's motion to suppress the results of a state-administered chemical blood test, arguing that the trial court erred in finding that Clay did not voluntarily consent to the test. For the reasons that follow, we agree and reverse.

"On appeal from a ruling on a motion to suppress, we construe the evidence most favorably to affirming the trial court's factual findings and judgment." (Citation and punctuation omitted.) Jacobs v. State , 338 Ga.App. 743, 791 S.E.2d 844 (Case No. A16A1115, 2016 WL 5489013, decided Sept. 29, 2016). "[T]he trial court's decision with

793 S.E.2d 638

regard to questions of fact and credibility must be accepted unless clearly erroneous." (Citation and punctuation omitted.) Id. However, "[t]he trial court's application of the law to undisputed facts is subject to de novo review." Id.

So viewed, the record shows that between 2:00 a.m. and 3:00 a.m. on March 14, 2015, a Savannah–Chatham Metropolitan police officer responded to a call regarding a motor vehicle accident. Upon arrival at the scene of the accident, the officer discovered that a vehicle driven by Clay had apparently "t-boned" a stalled vehicle that had run out of gas while attempting to make a left-hand turn onto Old Montgomery Road from East Montgomery Crossroads. The officer located Clay inside his vehicle, and when Clay complained of pain in his shoulder, the officer called for EMS assistance.¹

While waiting on EMS to arrive, the officer observed that Clay smelled very strongly of an alcoholic beverage, that his words were slurred, and that his eyes were glassy. Clay admitted that he had been drinking that evening, although his answers regarding when and how much he had consumed changed throughout the conversation. When EMS arrived, the officer noticed that Clay was unsteady on his feet as he climbed into the back of the ambulance. Once Clay was seated in the ambulance, he declined to have EMS treat him for any injuries.

Based on her observations, the officer determined that she should administer field sobriety testing on Clay to determine if he was intoxicated. Clay consented to the testing, but due to the weather and road conditions, the officer decided to forego the one-leg stand and walk-and-turn tests and only conducted the horizontal gaze nystagmus test. Because she noted that Clay had a lack of smooth

339 Ga.App. 474

pursuit in both eyes, nystagmus at maximum deviation in both eyes, and the onset of nystagmus prior to 45 degrees, the officer believed that Clay was under the influence of alcohol to the point that he was unsafe to operate a motor vehicle. She then asked Clay if he would consent to a preliminary breath test on scene, and he agreed. Based on those results, Clay was placed under arrest.²

After his arrest, the officer immediately read Clay the Georgia implied consent warning for suspects over the age of 21—based on the date of birth provided on his drivers license.³ In response, Clay stated, "so you're going to draw my blood, all right, I'll submit." Before drawing his blood, EMS personnel asked Clay if he consented and he said yes. Clay then signed an electronic consent form provided by EMS.⁴ The EMS personnel proceeded to withdraw Clay's blood without incident. Clay was later charged with driving under the influence of alcohol (per se)⁵ and driving under the influence of alcohol (less safe).⁶

793 S.E.2d 639

Prior to trial, Clay moved to suppress the results of the state-administered chemical blood test. At the motion hearing, the State presented the testimony of the arresting officer, who testified that throughout the encounter with Clay, she spoke in a calm tone of voice and was not threatening or violent. She did not observe anything that led her to believe that Clay was unable to make a decision on his own. The officer also testified that Clay never attempted to withdraw his consent and that Clay orally consented to the EMS personnel's request to take his blood and that he signed a separate consent form.

339 Ga.App. 475

In its December 31, 2015 order granting Clay's motion to suppress, the trial court noted that Clay agreed to submit to the blood test and that he was not threatened in any way and did not show any physical resistance. Nonetheless, the trial court determined that there is "nothing in the totality of circumstances, and taking into consideration that a suspect could feel concerned about refusing because of the possibility of losing a limited permit, among other reasons, to suggest that the defendant did anything more than acquiesce to the blood draw." The trial court further found that "there was no apparent additional conversation or interaction with regard to the test to indicate that actual consent was sought or given," such that Clay's consent was insufficient pursuant to Williams v. State , 296 Ga. 817, 771 S.E.2d 373 (2015). This appeal followed.

The Fourth Amendment of the United States Constitution and Article I, Section I, Paragraph XIII of the Georgia Constitution protect an individual's right to be free from unreasonable search and seizures, including the compelled withdrawal of blood. See Williams , 296 Ga. at 819, 771 S.E.2d 373. Thus, the warrantless extraction of blood is presumed to be invalid, subject only to a few specifically established exceptions. Id. Here, the State invokes the consent...