State v. Coleman, A94A2234
| Decision Date | 10 March 1995 |
| Docket Number | No. A94A2234,A94A2234 |
| Citation | 455 S.E.2d 604,216 Ga.App. 598 |
| Parties | The STATE v. COLEMAN. |
| Court | Georgia Court of Appeals |
Gerald N. Blaney, Jr., Sol., Richard E. Thomas, Jeffrey P. Kwiatkowski, Asst. Solicitors, Lawrenceville, for appellant.
John D. Stone, Norcross, for appellee.
In this DUI case, the State appeals the trial court's grant of defendant's motion in limine to exclude the results of a breath test. We agree with the trial court that the arresting officer misinformed defendant (an out-of-state resident) about the consequences of his refusal to submit to the test, and therefore affirm.
Officer Michael Saunders stopped defendant at a routine roadblock in the early morning hours of September 19, 1992. Defendant had an out-of-state license and an out-of-state tag on his truck. Noticing that defendant smelled of alcohol, seemed nervous, and had red eyes and a flushed face, Officer Saunders administered several field sobriety tests. After defendant performed poorly on these tests, Officer Saunders arrested him and read him the implied consent warning, including the following sentence: "Under OCGA § 40-5-55 and 40-5-153, you will lose your privilege to operate a motor vehicle from six to twelve months should you refuse to submit to the designated State administered chemical test."
This case is controlled by Deckard v. State, 210 Ga.App. 421, 436 S.E.2d 536 (1993), in which we reversed the trial court's denial of a motion in limine under similar circumstances. Georgia is without authority to revoke or suspend a non-resident's driver's license; it may revoke or suspend only the non-resident's privilege of driving a motor vehicle on the highways of this state. Id. at 422, 436 S.E.2d 536. Thus, when the non-resident defendant in Deckard was told he would lose his driver's license for six months, he was misinformed regarding the consequences of his failure to submit to the test, and such misinformation constituted unlawful coercion. Id. at 422-423, 436 S.E.2d 536. Defendant in this case was misinformed about his options in the same way. The State notes that in Deckard the defendant was told that his driver's license would be suspended, while defendant here was told that he would lose his privilege to operate a motor vehicle. This is a distinction without a difference, however, as the officers in both cases omitted the crucial fact that the defendant's refusal to submit to the test would affect his ability to drive on the highways of this state. Accordingly, as in Deckard, defendant in this case was deprived of making an informed choice, and the test results are inadmissible.
The dissent asserts the officer's warning was not inaccurate since Georgia is obligated to notify the non-resident driver's home state, see OCGA § 40-5-51, and the home state in this case would probably revoke defendant's driving privileges under their own law. But the State of Georgia cannot control or know for certain what other states will do, and the North Carolina law cited by the dissent is not a uniform law. We all agree that we need to provide patrol officers with guidance in this matter, and the rule regarding warnings for out-of-state residents certainly should not depend on which foreign state the driver is from and how that state handles such situations. Thus, in accordance with Deckard, the officer's warning should include the limiting language "on the highways of this state."
The dissent also suggests that since the home state may revoke the out-of-state resident's license after receiving notification of the Georgia offense, it actually may be inaccurate to limit the warning to "on the highways of this state." However, this potential problem is easily remedied by the insertion of the words "at least," so that non-resident drivers are informed that they will lose their driving privileges, "at least on the highways of this state," for six to twelve months.
Anthony v. State, 211 Ga.App. 622(3), 441 S.E.2d 70 (1993) and State v. Reich, 210 Ga.App. 407(2), 436 S.E.2d 703 (1993) are cited as precedent conflicting with Deckard. Unlike the defendants in Deckard and this case, the defendants in Anthony and Reich did not argue that the warning was inaccurate because Georgia was without authority to revoke driving privileges beyond its borders; rather, they argued that the warning was inaccurate because Georgia was not at that time fulfilling its statutory obligation to notify the home state. Moreover, the defendant in Reich refused to take the test after the warning was given, and as the Reich opinion pointed out, it is unlikely that overstating the penalty for refusing to take the test would coerce someone into refusing to take the test. Thus, Anthony and Reich may be technically distinguishable. To the extent that Anthony and Reich are inconsistent with the holding of Deckard and this case, however, Anthony and Reich are overruled.
Judgment affirmed.
I respectfully dissent as it is my view that Georgia's Implied Consent law sufficiently apprises non-resident motorists suspected of drunk driving in Georgia of the consequences of the decision not to submit to a state-administered test for the presence of drugs or alcohol. Further, I believe the majority overrules the wrong case law in this instance. Rather than overrule factually distinguishable holdings in Anthony v. State, 211 Ga.App. 622, 624(3), 441 S.E.2d 70, and State v. Reich, 210 Ga.App. 407, 408(2), 436 S.E.2d 703, I would take this opportunity to overrule Deckard v. State, 210 Ga.App. 421, 436 S.E.2d 536, for the following reasons.
There is no question that Officer Michael Saunders properly advised defendant, in the case sub judice, pursuant to the relevant portion of Georgia's Implied Consent law, informing defendant that "you will lose your privilege to operate a motor vehicle from six to twelve months should you refuse to submit to the designated State administered chemical test." See OCGA § 40-5-67.1(b)(2). However, the majority says this admonition is not enough for non-residents suspected of drunk driving in...
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