The State v. Barnes
770 S.E.2d 890
Ga. Ct. App.2015Background
- After midnight on Aug. 30, 2012, Peachtree City officer stopped Denise Barnes for swerving and observed signs of intoxication; PBT at the scene produced no reading and Barnes was arrested for DUI (less safe driver).
- Officer read Georgia implied consent notice twice; on first reading Barnes said she did not understand; on second reading officer misread language and Barnes said, “No, I thought I just did that.”
- A second officer explained the difference between the portable breath test and the state-administered test; Barnes responded, “Oh, ok.”
- At the station, the arresting officer told Barnes, “this is the state administered test that you agreed to take,” and Barnes submitted to the Intoxilyzer 5000 breath test.
- Trial court granted Barnes’ motion to suppress the state-administered breath test results, finding she had clearly refused and did not rescind her refusal by saying “Oh, ok.” The State appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Barnes clearly refused the state-administered test when she said, “No, I thought I just did that.” | Barnes: her statements and confusion show she refused the state test. | State: the “No, I thought I just did that” was not a clear refusal. | Trial court found it was a clear refusal; appellate court accepted factual finding but reviewed legal consequences de novo. |
| Whether Barnes rescinded any earlier refusal by saying “Oh, ok” after being told the PBT and state test differ. | Barnes: “Oh, ok” merely acknowledged difference, not consent. | State: the officer reasonably interpreted “Oh, ok” as rescission and assent. | Trial court found “Oh, ok” was not a rescission; appellate court found the court failed to evaluate whether the officer’s interpretation was reasonable and fair and remanded. |
| Whether Barnes’ subsequent voluntary submission at the station constituted a valid rescission of refusal. | Barnes: prior clear refusal was not effectively rescinded by later statements or by taking the test. | State: Barnes consented at the station after explanation; that constituted rescission. | Appellate court concluded the trial court did not fully analyze whether the officer’s conduct at the station was fair and reasonable and remanded for that inquiry. |
| Standard for evaluating rescission and officers’ conduct in obtaining consent after equivocation. | Barnes: factual credibility resolves whether rescission occurred. | State: officer persuasion may be fair and can validate later consent. | Court emphasized that whether officer acted reasonably and fairly under totality of circumstances must be evaluated; remanded for further proceedings. |
Key Cases Cited
- Brown v. State, 293 Ga. 787 (appellate review deference to trial court on factual findings)
- Martin v. State, 316 Ga. App. 220 (appellate court reviews legal conclusions de novo)
- Howell v. State, 266 Ga. App. 480 (officers may use fair and reasonable persuasion to obtain rescission)
- State v. Allen, 272 Ga. App. 169 (inquiry focuses on timeliness of informing rights and fairness of securing consent after equivocation)
- Stapleton v. State, 279 Ga. App. 296 (no coercion where officer asked about breath test at jail after on-scene refusal)