Wright v. State
| Decision Date | 15 July 2016 |
| Docket Number | A16A0240 |
| Citation | 338 Ga.App. 216,789 S.E.2d 424 |
| Parties | Wright v. The State. |
| Court | Georgia Court of Appeals |
Lance Warren Tyler, Lawrenceville, for Appellant.
Wystan Getz, Sherry Boston, Decatur, for Appellee.
, Judge.
Following his arrest for DUI, Wright filed a motion in limine to exclude the results of the state-administered breath test on the basis that he requested, but was not given, an independent chemical test of his blood. The trial court denied Wright's motion, concluding that Wright did not request an independent test. Wright was subsequently found guilty of DUI per se, DUI less safe, and two counts of speeding. The trial court merged the two speeding counts and also merged the DUI less safe count with the DUI per se count for sentencing purposes.
On appeal, Wright argues that the trial court erred in admitting the results of the state-administered test because he was not given an independent test after requesting one. We agree that, under our existing precedent, Wright's statements to the arresting officer could reasonably be construed as a request for an independent test and, therefore, the state-administered test results should have been suppressed. Accordingly, we reverse Wright's DUI per se conviction and vacate the guilty verdict on the DUI less safe count. Because Wright does not challenge his conviction for speeding, we affirm that conviction.
1. In his sole enumeration of error, Wright argues that the trial court erred in failing to suppress the results of the state-administered breath test because he was unjustifiably denied his statutory right to obtain an independent test. We agree.
A trial court's factual findings when ruling on a motion in limine to exclude the results of a state-administered chemical test should not be disturbed by a reviewing court if there is any evidence to support them. England v. State , 302 Ga.App. 12, 14, 689 S.E.2d 833 (2009)
. However, we “owe[ ] no deference to a trial court's factual findings gleaned from a review of a videotape that are not the subject of testimony requiring the trial court's weighing of credibility or resolving of conflicts in the evidence.” Clay v. State , 290 Ga. 822, 825 (1) (A) (2) n. 1, 725 S.E.2d 260 (2012). The trial court's application of the law to undisputed facts when ruling on such a motion is reviewed de novo. Id. ; see also
Jones v. State , 291 Ga. 35, 36–37, 727 S.E.2d 456 (2012) ().
The evidence in this case, which is largely undisputed or can be gleaned from a videotape, shows that in May 2014, Officer Streeter of the DeKalb County Police Department clocked Wright's vehicle traveling at 79 miles per hour in a 55–mile–per–hour zone. Officer Streeter conducted a traffic stop and noticed an odor of alcohol while speaking to Wright. During his conversation with the officer, Wright admitted that he had consumed “a couple of beers.” Wright agreed to participate in field sobriety testing, in which he exhibited all six indicators on the HGN test, two out of eight indicators on the walk and turn test, and one out of four indicators on the one leg stand test. After observing Wright's performance on the field sobriety tests, Officer Streeter then asked Wright to submit to an Alco-sensor test of his breath, and Wright agreed. The results of the Alco-sensor were positive, and Officer Streeter placed Wright under arrest for DUI. Wright pleaded with Officer Streeter to give him a warning, stating that he was very close to become a police officer himself.
Officer Streeter then read the implied consent notice to Wright, and asked Wright if he would submit to a breath test. After Officer Street finished, the following discussion ensued:
As Officer Streeter was re-reading the implied consent notice and explaining that Wright's license would be suspended if he refused the state-administered test, Wright interrupted and said, When Officer Streeter finished reading the notice, the following conversation transpired:
Wright then asked if he would lose his license if he failed the test, and Officer Streeter replied that he could not answer Wright's question. Wright subsequently agreed to take the state-administered chemical test.
Wright was then placed in the patrol car. While in the patrol car, Wright again asked to be let off with a warning, stating that he was not that impaired and that a lot of people leave bars more impaired than he was. Wright subsequently asked, “Where I gotta do my blood test at?” Officer Streeter responded that it would be “in the intox room.” Wright asked whether that room was in the jail, and Officer Streeter answered that it was When Wright arrived at the detention center, he submitted to the Intoxilyzer breath test, the results of which revealed he had a blood alcohol concentration of 0.096 grams. Wright did not make any further statements about an independent test.
OCGA § 40–5–67.1(b)(2)
(emphasis added). OCGA § 40–6–392(a)(3) provides that “[t]he justifiable failure or inability to obtain an additional test shall not preclude the admission of evidence relating to the test or tests taken at the direction of a law enforcement officer[.]” OCGA § 40–3–392(a)(3).
Under this statutory framework, this Court has concluded that when a suspect “requests an independent test but is unable to obtain it, the results of the State-administered test cannot be used by the State as evidence against [him] unless the failure to obtain the test is justified.” Ladow v. State , 256 Ga.App. 726, 728, 569 S.E.2d 572 (2002)
(citation and punctuation omitted). In setting a standard for what amounts to a request, the Ladow Court concluded that “[a]n accused's right to have an additional, independent chemical test or tests administered is invoked by some statement that reasonably could be construed, in light of the circumstances, to be an expression of a desire for such test .” Id.
(emphasis added).2
Although we have quoted this standard consistently since Ladow
, simply articulating a standard—without...
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