State v. Domenge-Delhoyo

• Decision Date: 15 July 2016
• Docket Number: A16A0362
• Citation: 790 S.E.2d 139,338 Ga.App. 439
• Parties: The State v. Domenge–Delhoyo.
• Court: Georgia Court of Appeals

338 Ga.App. 439

790 S.E.2d 139

The State

v.Domenge–Delhoyo.

A16A0362

Court of Appeals of Georgia.

July 15, 2016

Reconsideration Denied July 29, 2016

Rosanna M. Szabo, Lawrenceville, Ryan Andrew Fisher, for Appellant.

Daniel Benjamin Sessions, Norcross, for Appellee.

Boggs

, Judge.

In this DUI and hit-and-run case, the State appeals from the trial court's order granting Monique Domenge–Delhoyo's motion to suppress the results of a state-administered blood test. The State asserts that the trial court erred in concluding that Domenge–Delhoyo did not actually consent to the state-administered blood test under the totality of the circumstances. For the reasons explained below, we agree and reverse.

“In this Court's review of a trial court's grant or denial of a motion to suppress, the trial court's findings on disputed facts will be upheld unless clearly erroneous, and its application of the law to undisputed facts is subject to de novo review. [Cit.]” Barrett v. State , 289 Ga. 197, 200 (1), 709 S.E.2d 816 (2011)

. See also Hughes v. State , 296 Ga. 744, 746 (1), 770 S.E.2d 636 (2015) ; State v. Bowman , 337 Ga.App. 313, 313–314, 787 S.E.2d 284 (2016). Based upon the video recording of Domenge–Delhoyo's encounter with the police at the time of her arrest and the reading of the implied consent warning, we will conduct a de novo review of this issue. See State v. Depol , 336 Ga. App. 191, 784 S.E.2d 51 (2016) (conducting de novo review of defendant's actual consent to breath test because “controlling facts are undisputed because they are plainly discernable from the patrol car-mounted video recording”) (Citations and punctuation omitted.)

The evidence presented at the motion to suppress hearing shows that on August 29, 2014, some time between 11:00 p.m. and midnight, Domenge–Delhoyo sideswiped the passenger side of a car traveling in the same direction as she passed in the right lane. A witness described it as sounding like “tire on metal” contact. She did not stop or slow down even though the hubcap of the other car came off and the passenger side mirror was dangling. When the driver of the car caught up with her at the next intersection about a half mile away, he informed her that she had hit his car and asked her to pull into a nearby parking lot. She seemed genuinely surprised to learn that she had struck his vehicle. In the parking lot, the car's driver determined that there was “no real bodily damage” to his car, and it is undisputed that he was not hurt. When the driver asked Domenge–Delhoyo if she had been drinking, she said “no,” and the driver “thought maybe she was in her right mind.” He did not smell alcohol, “she spoke pretty well,” and nothing made him believe that she was intoxicated other than the fact that she had hit his car without realizing it. He did notice that her eyes were glassy-looking and red.

When the car's driver noticed that a police officer was parked nearby, he reported the accident at the request of the person whose car he was driving. When the patrol officer questioned Domenge–Delhoyo about the car wreck and what had happened, she responded, “I just screwed up,” explaining “that she had felt something but she wasn't sure what it was.” The officer did not smell any alcohol, but based on the “huge delay” of “five to ten seconds” between his questions and her response, he “assumed she was under some sort of narcotic” and contacted a DUI specialist to assist him.

After the DUI officer¹ arrived, he spoke with Domenge–Delhoyo and made the same observations about her as the first officer, except that he smelled “a very faint odor of an alcoholic beverage coming from her breath.” She initially denied drinking, but when the officer challenged her by stating that he could smell the odor of alcohol on her breath, she admitted “that she had one beer that night.” When he asked her to step out of the truck, “[h]er exit was slow” and she had to hold on to the truck to steady herself. When he asked her to walk to the front of his patrol car (where the video camera was mounted), “[s]he was unsteady on her feet as she walked.” The officer testified that as he continued to speak with her, Domenge–Delhoyo “seemed very annoyed at my questions ... almost as if she didn't want to answer them. I guess kind of evasive.” The video recording supports this testimony.

Toward the end of the DUI officer's conversation with Domenge–Delhoyo, he stated, “You see how this looks, right? I mean initially you told the officer you hadn't had nothing to drink and all of a sudden now it's one. And you sideswipe another car. I mean there really is no other explanation for it, I mean, ... a couple of things are happening here (a) you were really distracted or (b).” At this point, Domenge–Delhoyo interrupted the officer and stated that she was distracted. The officer then asked if he could check her to make sure she was safe to drive. After Domenge–Delhoyo asked, “What does that mean?”, the officer replied that there were some field sobriety evaluations that he would like to do. When she asked if she had to oblige and do it, he told her that they were “completely voluntary,” but if he had to make a decision to arrest, he wanted to do it based upon the most information he possibly could. He stated that he could smell alcohol on her breath and “[s]o, do I believe that you had the one? Maybe, maybe not.” I don't know that you had just the one ... sideswiping another car on a road and it's not very busy out, ... so ... no?” After Domenge–Delhoyo again responded “nope,” the officer deliberated quietly for about 15 seconds before telling Domenge–Delhoyo to put her hands behind her back because she was under arrest for DUI.

As the officer attempted to take one of her arms and place it behind her back, Domenge–Delhoyo turned toward the officer stating, “What?” and placed her other hand on his to stop him. As she continued to wiggle and struggle against being placed in handcuffs for about 10 seconds, the officers told her to “stop moving,” to “stop resisting,” and to “relax.” As both officers on the scene began to get her arms under control, Domenge–Delhoyo then asked, “Aren't you going to check me?” When the officer responded, “You said you didn't want to,” Domenge–Delhoyo emphatically stated, “No. I want to.” The officers then released her hands, and the DUI officer told Domenge–Delhoyo, “Okay, ... I've already told you you're under arrest, okay, so because of that I gotta read you Miranda . These are your rights, okay.” He then stated:

You have the right to remain silent. Anything you say can and will be used against you in a court of law. You have the right to speak to a lawyer and have him present for any questioning if you wish. If you cannot afford a lawyer one will be appointed to you to represent you before any questioning if you decide to exercise these rights and not answer any questions or make any statement. Do you understand these rights as I have read them to you?

Domenge–Delhoyo stated, “Yep,” and the officer asked again, “Having these rights in mind, do you still want to do ... the field sobriety evaluations?” and she confirmed, “Yeah.” The officer then asked screening questions about her vision, injuries, and any medication. Domenge–Delhoyo informed him that she took Xanax

for depression and had taken her normal dose that morning.

The officer's field sobriety evaluation revealed six out of six clues on the HGN, six out of eight clues on the walk and turn, and two out of four clues on the one leg stand. It took approximately ten minutes to complete these evaluations. When the officer took out an alco-sensor device, he explained to Domenge–Delhoyo that it would only reveal whether there was or was not alcohol present on her breath. After he unwrapped it and asked her to blow, Domenge–Delhoyo asked, “Wait, can I like decline that?” The officer informed her that it was completely voluntary, and she stated that she would decline it.

The officer then stated again that she was under arrest for DUI and asked her to place her hands behind her back, while Domenge–Delhoyo immediately began interjecting that she would take it. The video recording shows that for approximately 30 seconds, she wiggled her arms and struggled against the two officers who carefully attempted to place her hands behind her back, all the while asking her to “relax” and “stop moving.” At one point, the patrol officer quietly and calmly told her that they would have to put her on the ground if she did not cooperate. They nonetheless kept carefully trying to get her hands behind her back while she was standing, but when the DUI officer took a hand off one of her arms to reach for his handcuffs, the patrol officer stated, “I'm losing her.” At that point, the patrol officer performed a quick maneuver in which he moved one of Domenge–Delhoyo's forearms upward behind her back and then pushed her face-down onto the hood of the patrol car. While the open palm of her free hand and arm hit the hood before her body and made a loud sound, there was no loud sound when her body first touched the patrol car. After gaining control of Domenge–Delhoyo while she was against the hood of the car, the officers were finally able to place her in handcuffs. During the entire struggle, Domenge–Delhoyo repeatedly offered to take the test, but the officers informed her that they were “beyond that.”

Once Domenge–Delhoyo was placed in handcuffs, the patrol officer immediately helped her back to a standing position. After searching her pockets, the DUI officer informed her that she needed to move to the passenger side of his car. While walking, she asked the officer if she could have her shoes and the officer told her he “would grab them in a second.” He can be heard opening the car door and asking her to have a seat. He then immediately told her, “Anytime someone's placed under arrest in the State of Georgia for DUI, there's a statement we gotta read; there's gonna be a question at the end. ...