Defendant was charged in two Uniform Traffic Citations with driving with a suspended license and driving with a prohibited bodily alcohol concentration in violation of OCGA § 40-6-391 (a) (4). After the trial court denied defendant’s motion to suppress, a jury found defendant guilty of the crimes charged. Defendant filed this appeal, challenging the admissibility of the results of her State-administered brеath test, and contending the trial court erred in denying her motion to suppress. We agree that the trial court erroneously admitted the results of defendant’s breath test without requiring the State to comply with all of the express and explicit admission requirements of OCGA § 40-6-392 (a) (1) (A). And we reverse the denial of defendant’s motion to suppress because the arresting officer stopped defendant without specific, articulable facts sufficient to give rise to a reasonable suspicion of criminal conduct.
While on early morning patrol on August 6, 1994, Trooper G. W. Rogers of the Georgia State Patrol passed an oncoming Mercedes Benz automobile traveling at a low rate of spеed on Georgia Highway 32. Discerning no legitimate reason the old-model Mercedes Benz was traveling “between 25 аnd 30 miles an hour . . .” in a 55-mph speed zone, Trooper Rogers “turned [his patrol car] around on a curve . . . and started towards [the] vehicle to observe it a little bit closer. . . .” As the trooper closed in, however, the Mercedes Benz turned off the highway and headed down a dirt road. Trooper Rogers decided not to follow because hq did nоt know whether the driver “lived at [a] residence [on the dirt road] or not.” The trooper instead drove until his police cruiser was out of the suspect driver’s sight. He then returned to the dirt road and observed the Mercedes Benz turn “back onto 32 [and head] back towards Patterson!, Georgia].” Trooper Rogers again followed the slow moving Mercedes Benz, this time observing “visible exhaust coming from the rear of the vehicle. . . .” Concluding that the suspect driver was “an impаired driver or a burglar[,]” Trooper Rogers stopped the Mercedes Benz and discovered defendant behind thе driver’s wheel. She smelled like alcohol and was not in possession of a valid driver’s license. A subsequent breath test оn the State’s Intoximeter 3000 machine indicated that defendant had a bodily alcohol content of .15 percеnt. Held:
1. The trial court erred in admitting the results of defendant’s breath test because the State failed to establish that its Intoximeter 3000 machine had all of its electronic and operating componénts attached and in working order as required by OCGA § 40-6-392 (a) (1) (A).
State v. Hunter,
2. Defendant contends the trial court erred in denying her motion to suppress because Trooper Rogers stopped her without specific, articulable facts giving rise to á reasonable suspicion that she was engaged in criminal conduct. We agree.
Although we construe the evidence most favorably to upholding the trial сourt’s findings and judgment, “[t]his court’s responsibility in reviewing the trial court’s decision on a motion to suppress is to ensure that there was a substantial basis for the decision.
Brown v. State,
In the сase sub judice, Trooper Rogers testified that he stopped defendant because, at 1:20 in the morning, defendаnt was driving “between 25 and 30 miles an hour . . .” in a 55-mph speed zone, defendant turned onto a dirt road when he first began following hеr, and defendant returned to the highway — driving at a relatively slow rate of speed — after the trooper drove his patrol car out of defendant’s sight. These reasons alone, however, do not support Trooper Rogers’ conclusion that defendant was “an impaired driver or a burglar. . . .” See
State v. Goodman,
First, defendant could not have been impeding the flow of traffic in violation of OCGA § 40-6-184 (a) (1) because — by Trooper Rogers’ own admission — there was no traffic on the road for defendаnt to impede. Second, Trooper Rogers could not have justifiably stopped defendant for violating OCGA § 40-8-181 (a) bеcause there is no proof that the trooper was equipped with a light transmission gauge prescribed by OCGA § 40-8-182 (a) for enforcement of this part of Geor
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gia’s Vehicular Emission Control Act. Indeed, Trooper Rogers admitted upоn cross-examination at the motion to suppress hearing that “it was excessive for [him] to write a visible exhaust [violаtion].” Further, just as in
State v. Jones,
3. We do not reach defendant’s final enumeration of error in light of our holding in Division 2 of this opinion.
Judgment reversed.