State v. Gaggini
| Decision Date | 28 March 2013 |
| Docket Number | No. A12A2454.,A12A2454. |
| Citation | 740 S.E.2d 845,321 Ga.App. 31 |
| Parties | The STATE v. GAGGINI. |
| Court | Georgia Court of Appeals |
OPINION TEXT STARTS HERE
Rosanna M. Szabo, Sol.-Gen., Gary S. Vey, Suwanee, Michael Powers DiOrio, Asst. Sols.-Gen., for Appellant.
Barry L. Zimmerman, for Appellee.
The state appeals from a trial court order granting Alexandra Gaggini's motion to suppress the results of an Intoxilyzer 5000 breath test obtained at the time of her arrest for unlawfully stopping, standing, or parking on a roadway, and driving under the influence. After her arrest, the state filed an accusation charging Gaggini with driving under the influence of alcohol with an unlawful blood-alcohol concentration (“DUI per se”),1 driving under the influence of alcohol to the extent that it was less safe for her to drive (“DUI less safe”),2 and improper stopping, standing, or parking on a roadway.3 The state contends that the trial court erred in excluding the Intoxilyzer test results because the arresting officer properly read the appropriate implied consent warning. As to the DUI per se charge, the state contends that the trial court erred in basing its ruling, in part, on a finding that there was no admissible evidence that Gaggini had driven within three hours of consuming alcohol. We agree with the state and reverse.
In cases involving the review of the grant of a motion to suppress or motion in limine, we must construe the evidence most favorably to uphold the findings and judgment of the trial court, and that court's findings as to disputed facts and credibility must be adopted unless clearly erroneous. Where the evidence at a hearing on the motion is undisputed and no question regarding the credibility of witnesses is presented, 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 undisputed facts is subject to de novo review. 4
At the hearing on Gaggini's motion to suppress, two police officers testified. The first was an officer on patrol who, although not dispatched to the scene of the incident, was close by and responded to the scene within “a couple of minutes” of the call; the second was an officer on the DUI task force, who arrived at the scene soon after the first responding officer and arrested Gaggini. At 3:49 a.m. on February 26, 2011, the first officer responded to a call from dispatch about an “unknown medical problem in reference to a female slumped over in a vehicle in the roadway stopped.” The officer testified that when he arrived on the scene, he observed a vehicle on the side of the road; two individuals were standing near the vehicle, and a female was sitting inside the vehicle.
At the scene, the officer spoke with the complainant, who, according to the officer, told him the following. Approximately 25 minutes before the complainant called the police, the complainant had passed the vehicle which was stopped at a traffic light. When the complainant was returning from her destination, she again came across the vehicle, still stopped in the same position as when she had first seen it. The complainant and another individual walked to the vehicle, and before the officer arrived on the scene, they awakened the driver, who had been asleep at the steering wheel at the light. The driver started to drive away but the complainant and the other individual stopped her and “had her pull over to the side of the road.” At that time, the first responding officer arrived at the scene.
The officer testified that when he arrived at the scene, the vehicle was “off to the side of the road ... kind of parked up on the curb.” The officer identified Gaggini as the person who was seated in the driver's seat of the vehicle. The officer testified that as he arrived at the driver's side door and began talking with Gaggini, her speech was slurred, and he smelled an odor of alcohol coming from the vehicle. Gaggini told the officer that she had been to a bar with some friends and that she had consumed an alcoholic beverage. The officer obtained from Gaggini a driver's license. No one was in the vehicle with Gaggini. The DUI task force officer who ultimately effectuated the arrest of Gaggini arrived and took over the investigation.
The arresting officer testified that as he arrived at the scene, he observed a vehicle “half on the curb, half on the roadway.” He spoke with the first responding officer about the situation. The arresting officer then approached the vehicle. He testified that the driver, whom he also identified as Gaggini, was The arresting officer testified that he noticed a strong odor of alcohol coming from the vehicle. He testified that Gaggini's speech was slow and slurred, and that her eyes were bloodshot and had a glazed look. The arresting officer asked Gaggini to step out of the vehicle, and she swayed as she complied. As Gaggini talked to the officer, he noticed a strong odor of alcohol coming from her breath and person. He concluded that Gaggini was under the influence of alcohol to the extent she was a less safe driver, and he arrested her at 4:26 a.m.
The arresting officer had determined Gaggini's age from her driver's license; he retrieved his implied consent card and read verbatim to Gaggini the warning for suspects age 21 and over. A copy of the card was admitted in evidence. According to the officer, Gaggini “didn't know what to do,” in response to the warning. After he transported her to the jail, he began setting up the Intoxilyzer machine, and he again asked Gaggini whether she wanted to take the test; Gaggini replied “no.” The officer then showed Gaggini a form and explained to her that it would be her temporary driving permit. Gaggini then asked the officer to re-read to her the implied consent warning, which he re-read verbatim. Gaggini stated that she would take the test.
The arresting officer administered the test and obtained two breath samples which showed that at 5:14 a.m., Gaggini had a blood-alcohol concentration level of 0.187; at 5:17 a.m., Gaggini had a blood alcohol concentration level of 0.167. The arresting officer testified that based, in part, on information he received from the first responding officer about what the complainant had told him, he believed that Gaggini had submitted to the Intoxilyzer test within three hours of driving the vehicle. Gaggini did not testify at the hearing.
The trial court, in granting Gaggini's motion to suppress, pertinently concluded:
[Gaggini] was placed under arrest for driving under the influence and implied consent warnings were read to her and she was advised that her license would be suspended if she did not submit to the state administered breath test. This Court finds that the officer read ... the implied consent warning card for drivers licensed by the State of Georgia. Those warnings indicate that a driver's license will be suspended for failure to provide the requested sample. However, Defendant Gaggini did not have a Georgia driver's license and thus should have been told that her privilege to drive in Georgia, and not her license, would be suspended.
1. The state contends that the trial court erred in excluding the Intoxilyzer test results because the arresting officer properly read the appropriate implied consent warning. Specifically, the state argues that there was no evidence that Gaggini had an out-of-state driver's license, and that even if there were evidence that she did, the arresting officer read the only applicable implied consent warning. We agree.
(a) Although the trial court found that Gaggini did not have a Georgia driver's license, our review of the record does not support this finding. In her appellate brief, Gaggini, citing a page of the hearing transcript, states that she “provided [the officer] with an out-of-state driver's license.” But evidence that she provided the officer with an out-of-state driver's license is, in fact, not at the page indicated; nor is it anywhere else in the transcript. The trial court's finding that Gaggini did not have a Georgia driver's license was clearly erroneous.5
(b) The state contends that the trial court erred in excluding the Intoxilyzer test results because the arresting officer properly read the appropriate implied consent warning. Indeed, the arresting officer testified that he read verbatim to Gaggini the implied consent warning for suspects 21 years of age or over, and a copy of the...
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Wright v. State
...a police officer must read one of the three implied consent notices to the suspect. OCGA § 40–5–67.1(b) ; State v. Gaggini , 321 Ga.App. 31, 34–35 (1) (b), 740 S.E.2d 845 (2013). The applicable notice for suspects aged 21 or over informs suspects that, upon submitting to a state-administere......
- Williamson v. State, A12A2446.
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Williams v. State
...substantial basis for it,” and we review de novo the trial court's application of the law to the undisputed facts. State v. Gaggini, 321 Ga.App. 31, 32, 740 S.E.2d 845 (2013). (a) We first address the State's assertion that Williams failed to preserve this issue for appellate review under t......