Cash v. the State
337 Ga. App. 511
| Ga. Ct. App. | 2016Background
- On Oct. 12, 2014, a deputy found Cash and a passenger in a vehicle stopped on the shoulder of SR 400 at ~1:30 a.m.; deputy activated blue lights and approached to offer assistance.
- Deputy smelled a strong odor of alcohol, observed Cash’s glassy/bloodshot/watery eyes, and Cash admitted drinking two beers several hours earlier.
- Cash performed a horizontal gaze nystagmus (HGN) test with 6/6 clues, declined other field tests, but agreed to a breath test at the station.
- Deputy arrested Cash for DUI (less safe) and read implied consent; Intoxilyzer 5000 breath tests were administered showing .114 and .117, but the State never tendered the results into evidence at trial.
- At bench trial the court convicted Cash of both per se DUI (BAC ≥ .08 within 3 hours) and less-safe DUI, merged counts, and sentenced on the per se conviction; Cash appealed challenging sufficiency and denial of suppression.
Issues
| Issue | Cash's Argument | State's Argument | Held |
|---|---|---|---|
| Sufficiency of per se conviction (Count 1) | Per se conviction requires introduced breath results; State failed to admit Intoxilyzer results, so evidence insufficient | Breath tests existed and were administered; conviction should stand | Reversed per se conviction; insufficient evidence and double-jeopardy bars retrial on Count 1 |
| Sufficiency / admissibility effect on less-safe conviction (Count 2) | Trial court relied on unadmitted breath results in finding less-safe guilt; presence of those results requires reversal and new trial | Properly admitted indicia (odor, appearance, HGN) support less-safe conviction; any consideration of results was harmless | Although admitted evidence could support less-safe, consideration of unadmitted Intoxilyzer results likely influenced verdict; reversed and remanded for new trial on Count 2 |
| Denial of motion to suppress (initial encounter & detention) | Deputy’s activation of blue lights and approach constituted a seizure requiring reasonable suspicion; suppression required | Deputy’s approach was a first-tier police-citizen encounter (check for assistance); no seizure occurred until deputy smelled alcohol and developed reasonable suspicion | Affirmed denial of suppression: initial approach was a first-tier encounter, not a seizure; once smell/observations arose, deputy had articulable suspicion to investigate DUI |
| Retrial / Double jeopardy consequences | Per se conviction reversal should bar retrial on per se count | State may retry less-safe charge if conviction reversed for trial error | Per se count cannot be retried (insufficient evidence); less-safe count may be retried due to trial error affecting admissibility and verdict |
Key Cases Cited
- Peters v. State, 281 Ga. App. 385 (2006) (standard for reviewing sufficiency and necessity of BAC evidence for per se conviction)
- Epps v. State, 298 Ga. App. 607 (2009) (absence of blood/breath test results defeats per se DUI proof)
- State v. Caffee, 291 Ga. 31 (2012) (double jeopardy bars retrial when conviction reversed for insufficient evidence)
- Bravo v. State, 304 Ga. App. 243 (2010) (erroneous admission of BAC evidence likely to have contributed to verdict may require reversal of less-safe conviction)
- Hutto v. State, 259 Ga. App. 238 (2003) (officer’s approach to stopped vehicle with lights on can be a first-tier encounter; odor and bloodshot eyes supply articulable suspicion for DUI investigation)