State v. Terry
Decision Date | 05 February 1999 |
Docket Number | No. A98A1710.,A98A1710. |
Citation | 236 Ga. App. 248,511 S.E.2d 608 |
Parties | The STATE v. TERRY. |
Court | Georgia Court of Appeals |
OPINION TEXT STARTS HERE
Kenneth B. Hodges III, District Attorney, Jennifer Johnson-Green, Assistant District Attorney, for appellant.
Brown & Scoccimaro, Ralph O. Scoccimaro, Albany, for appellee.
On the night of March 13, 1997, Officer Carmelita Preston of the Albany Police Department was called to the scene of an accident. Appellant Kellie V. Terry was the driver of one of the vehicles involved. After another officer at the scene told Preston that Terry had admitted that she had had a few drinks before she left work that night, Preston approached Terry and asked her if she had been drinking. Terry stated that she had had a couple of beers before she left her job. Preston observed that Terry's eyes were red and glassy, and she smelled alcohol on Terry's breath. Preston then placed Terry into her patrol car and read her the implied consent notice before calling another officer to administer an alco-sensor test. No other field sobriety tests were performed due to heavy rain. Terry was arrested based upon the results of the alco-sensor test.
Preston drove Terry to the Dougherty County Jail, where she again read her the implied consent notice. Terry then began asking questions of Preston and the Intoxilyzer test operator. This exchange was recorded on videotape and played at the motion hearing. The transcript shows the following colloquy after Preston read the implied consent notice:
Following this exchange, Terry refused to submit to an Intoxilyzer test, and she was charged with driving under the influence.
Terry subsequently filed a motion in limine seeking to suppress the evidence of her refusal to submit to the Intoxilyzer test. In her motion, Terry argued that Preston and the test operator incorrectly told her that obtaining bond was a precondition to taking an independent test in contravention of the law. She asserted that this confusion made it impossible for her to make an informed decision and that evidence of her refusal to take the blood test was accordingly inadmissible. The trial court agreed and granted the motion in limine, and the state appeals.
Wells v. State, 227 Ga.App. 521, 489 S.E.2d 307 (1997). 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 (Punctuation omitted.) Buchnowski v. State, 233 Ga.App. 766, 767(1), 505 S.E.2d 263 (1998); State v. Leviner, 213 Ga. App. 99(1), 443 S.E.2d 688 (1994).
The state argues that the trial court erred in granting the motion in limine because Terry was correctly informed of her rights when the officer read her the implied consent notice. Preston's later explanations could not be misleading, the state asserts, because Terry had been fully informed of her rights when the notice was read and further Preston did not intend to mislead Terry. We find these arguments to be unpersuasive.
If we were to adopt the state's position, a police officer could give a defendant false, misleading or confusing information regarding his rights under the implied consent law, so long as the officer at some point read the defendant the complete and correct implied consent notice. Clearly, that cannot be the intended result of the implied consent statute. Further, we do not believe that the officer's intent with regard to such information is determinative. Even if an officer did not intend to mislead, if the defendant is misled or misinformed as to his rights, his ability to make an informed decision would be impaired.
While it is undisputed that Preston read Terry the implied consent notice, it appears that Terry still had questions about her rights even after the notice was read. And in attempting to respond to those questions,...
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State v. Wilson
..."must be given in order to afford the driver the opportunity to make a knowing and intelligent decision."); State v. Terry, 236 Ga. App. 248, 511 S.E.2d 608, 611 (1999) ("if the defendant is misled or misinformed as to his rights, his ability to make an informed decision would be impaired")......
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Kitchens v. State
...evidence of the driver's refusal to consent where that refusal may have resulted from misleading information. In State v. Terry, [236 Ga.App. 248, 511 S.E.2d 608 (1999),] for instance, we affirmed the suppression of evidence of a driver's refusal to take a blood test where police falsely in......
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