Laura Lee Rowell appeals following her conviction on one count of driving under the influence and one count of weaving/failure to maintain lane. Rowell argues on appeal that the trial court erred in denying her motion to suppress and in overruling her objection to the introduction of the numerical results of her alco-sensor test.
We review a trial court’s ruling on a motion to suppress evidence using the “any evidence” standard, “which means that we sustain all of the trial court’s findings of fact that are supported by any evidence.” Thus, “we construe all evidence presented in favor of the trial court’s findings and judgment, accepting the trial court’s decision unless it is clearly erroneous.
(Punctuation and footnotes omitted.)
Jupiter v. State,
So viewed, the evidence at the hearing showed that on November 15, 2007, Trooper John Hardage of the Georgia State Patrol was sitting at an intersection in Houston County when he observed Rowell’s Ford van traveling at what appeared to be a speed greater than the posted speed limit. He watched the van as it approached a red light at another intersection, slammed on its brakes and skidded past the stop bar. When the van came to a stop it was mostly in the left-hand lane, but partially in the right-hand lane. At that point, Hardage made a left turn and got behind Rowell’s van and followed her through the intersection when the light turned green. The trooper activated his blue lights and initiated a traffic stop based upon his concern about Rowell’s reaction time at the red light. His concern arose from observing her slamming on her brakes and skidding across the stop bar “basically into the intersection” and over into the next lane. He felt that she was a less safe driver.
Based upon this information, Hardage formed the opinion that Rowell was a less safe driver under the influence of alcohol. Hardage placed Rowell under arrest for DUI and failure to maintain lane, then handcuffed her and put her in the back of the patrol car. He testified that he read her the implied consent warning after he placed her under arrest.
The trial court issued a letter order denying the motion to suppress after reviewing the evidence from the hearing, the video of the traffic stop, the audio transcript of the administrative license suspension (“ALS”) hearing, counsel’s argument and case law. The denial of that order was reaffirmed at trial.
1. Rowell first asserts that the trial court erred in denying her motion to suppress the state’s chemical test, arguing that Hardage lacked probable cause to arrest her for DUI. In support of her argument, Rowell argues that inconsistencies exist among Hardage’s testimony at the motion hearing, his trial testimony and the videotape of her traffic stop as to when he first detected the odor of alcohol, whether Rowell’s speech was slurred, her red eyes, his administration of the field sobriety tests and whether Rowell was unsteady on her feet when she walked back to her car.
But we cannot reach this issue because the record before us is incomplete, as it contains no transcript of the ALS hearing, upon which the trial court specifically relied in denying the motion to suppress. It appears that at the motion hearing, Rowell’s counsel proffered Hardage’s “sworn testimony” from that ALS hearing, in some form other than a transcript, which he had marked as “D2,” but no Exhibit D2 was introduced into evidence. It further appears that Rowell’s counsel attempted to introduce a copy of the transcript of the ALS hearing at trial, after marking it as Exhibit “Dl,” but the trial court excluded the evidence in response to the State’s objection. The trial court told Rowell’s counsel that he thought he could supplement the record with that transcript, but the appellate record reflects no attempt by Rowell to do so.
Nevertheless, it is apparent that the trial court relied upon a transcript of that evidence at Rowell’s request following the motion hearing. Consequently, the record on appeal does not constitute a complete record of the evidence available to the trial court in ruling on the motion to suppress. Rowell, as appellant, had the burden of ensuring that the record was complete. See
Williams v. State,
An appellant has the burden of proving trial court error by the appellate record, and must compile a complete record of what transpired in the trial court. Otherwise, there is not sufficient information for an appellate court’s review and the trial court ruling enumerated as error must be upheld. When a portion of the evidence bearing upon the issues raised by the enumerations of error is not brought up in the appellate record so that this court canmake its determination from a consideration of it all, an affirmance as to that issue must result. [Cit.]
(Citation and punctuation omitted.)
Crawford v. State,
2. Nevertheless, Rowell also raises certain issues based primarily upon the videotape of the traffic stop that can be resolved based upon the existing appellate record.
(a) Rowell takes issue with Hardage’s administration of the HGN and the one-leg-stand tests as shown on the videotape of the traffic stop. We find no error. With regard to the HGN test, Rowell asserts that “[t]he distance the stimuli is from the face and height above the eyes, the timing of each pass of each eye by the stimulus, clues of ‘equal tracking’ being looked for by the Officer, instead of the three recognized clues, all indicate a flawed and butchered performance not worthy of belief.” But “[ajbsent a fundamental error, such as one affecting the subject’s qualification for the HGN test, evidence of the possibility of error goes only to the weight of the test results, not to their admissibility.” (Punctuation and footnote omitted.)
Parker v. State,
(b) Rowell also raises several arguments regarding the administration of the alco-sensor test, asserting that she was improperly coerced into taking the test without the benefit of a Miranda warning.
Alco-sensor and other field sobriety tests given to a person under custodial arrest are inadmissible where administration of the tests has not been preceded by a Miranda warning. Although a motorist is deprived of his freedom of action during a traffic stop, such a deprivation does not always trigger the rights set forth in Miranda. Instead, the test for determining whether a person is “in custody” at a traffic stop is if a reasonable person in the suspect’s position would have thought the detention would not be temporary. Whether one is in custody for Miranda purposes is a mixed question of law and fact, and the trial court’s determination will not be disturbed unless it is clearly erroneous.
(Footnotes omitted.)
State v. Padidham,
Here, Rowell argues that Hardage’s actions in administering the test constituted improper coercion and/or transformed her detention into a custodial situation for purposes of Miranda. Hardage administered the alco-sensor test after he determined that Rowell had failed the HGN and the one-leg-stand tests. The videotape reflects that as Rowell blew into the alco-sensor device, Hardage urged her repeatedly to “blow, blow, blow.” But her initial attempts failed to achieve a useable reading, and Hardage told her on two occasions that he would take her to jail if she did not properly blow into the device. At trial, Hardage testified that Rowell was not performing the test as instructed, and he was intending to inform her that if she did not perform it correctly, he would take her to jail to perform the state-administered chemical test.
From our review of the videotape, we conclude the trial court could have properly interpreted Hardage’s repeated commands to “blow, blow, blow” as instructing her as to the length of her breath and not as an attempt to force her to submit to the test. But Hardage’s statements that he would take Rowell to jail if she did not properly perform the test are more troubling.
In
Leiske v. State,
Nevertheless, we do not believe that Hardage was required to read Rowell a
Miranda
warning under the circumstances of this case. This Court has previously held that where a police officer indicates that a defendant is going to jail regardless of his performance on the field sobriety tests, an officer must read the
Miranda
warning. See
Hale v. State,
But even if Hardage’s statements could be construed as improperly coercing Rowell into continuing to perform the test, we find that the admission of the test results was harmless error because sufficient evidence existed to establish probable cause for Rowell’s arrest without that evidence. The officer had already observed her abrupt stop at the traffic light, which led her to cross the traffic bar and veer into another lane. After the traffic stop, he smelled the odor of alcohol and observed that she was unsteady on her feet, that her eyes were red and that her speech was somewhat slurred. These factors along with her performance on the two other field sobriety tests were sufficient to give Hardage “knowledge or reasonably trustworthy information sufficient to authorize a prudent person to believe that the suspect was actually in physical control of a moving vehicle, while under the influence of alcohol to a degree which renders him incapable of driving safely.” (Citation omitted.)
Cash v. State,
3. Rowell next asserts that the result of the state’s chemical test should have been excluded because although Hardage testified that he read her the implied consent notice, the videotape does not reflect that he, in fact, read the notice to her.
OCGA § 40-6-392 (a) (4) provides, in part, that the arresting officer at the time of arrest shall advise the person arrested of his rights to a chemical test or tests according to this Code section. . . . [This statute requires] exclusion of the results of a State-administered chemical test where the notice was not given at the time of arrest, or at a time as close in proximity to the instant of arrest as the circumstances of the individual case might warrant.
Thomas v. State,
Even if the issue were properly preserved, however, we would find no error. Hardage testified that he read Rowell the implied consent notice. Although the videotape in the appellate record does not reflect the reading of the notice, the sound quality on portions of the tape is poor, often cutting in and out. The videotape contains at least two gaps in sound after Rowell’s arrest when both Hardage and Rowell are offscreen.
4. Rowell also contends that the trial court erred in overruling her objection to Hardage’s testimony regarding the numerical reading shown on the alco-sensor.
At the hearing on the motion to suppress, the trial court allowed Hardage to testify over Rowell’s objection to the numerical reading on the alco-sensor device. The trial judge stated that he would allow the testimony in “and we’ll deal with it. You know, we will not let it go to the jury.” It is well established that “alco-sensor results are not used as evidence of the amount of alcohol or drug in a person’s blood. Instead, the alco-sensor is used as an initial screening device to aid the police officer in determining probable cause to arrest a motorist suspected of driving under the influence of alcohol.” (Citations and punctuation omitted.)
Keenan v. State,
But even if the trial court erred in admitting this evidence, Rowell has failed to show harm. “[A] reversal is not warranted simply because the judge heard . . . allegedly inadmissible evidence. When the judge sits as the trier of fact, it is presumed that he will consider only legally admissible evidence.” (Citation and punctuation omitted.)
Poole v. State,
Judgment affirmed.
Notes
(Footnote omitted.)
Bramlett v. State,
We note that some of our sister states have applied a somewhat different analysis to reach the same result. Those states have held that an officer’s action in advising a person that he would be arrested if he refuses to submit to field sobriety tests is not improperly coercive if the officer had probable cause to arrest the person for DUI. See
City of Columbus v. Bickis,