*1 18 fitness-for-duty report, required
providing this act dissent. I therefore to insubordination. amounted Judge Ellington in this to state I am authorized 7 28, March Decided 7 12, 200 appel- Kramer, Patel, Patel, Shalini A. for Michael E. Kramer & lant. Doyle, Clay, C.
Brock & Clement THE STATE v.AUSTELL.
A06A2171. (645 SE2d
Barnes, Chief The State (see (4); appeals OCGA§ 5-7-1 615) (1993)) trial of Vinson court’s 287 SE2d Larry the results of a chemical motion in limine to Austell’s undue because of the between test of Austell’s blood arrest, after a traffic
warnings. Finding error, we affirm the trial court. no this court When a motion to our a trial court’s decision on
reviews responsibility there basis is to ensure that was substantial (3) Morgan 732, v. for the decision. guided by principles 639) (1990). three are interpreting determination of the a motion the trial court is the the trial court’s when considering facts. When trier of facts. The findings such evidence,
court hears the and when its conflicting upon analo- are are based gous and must not be disturbed to a verdict supports appellate any Also, the trial if them. court questions credibility regarding of fact and court’s decisions accepted they are erro- must be unless of witnesses neous, must be construed most and the evidence findings court’s the trial 646) (1994). State, 264 Tate v. Additionally, uncontroverted and no the evidence is credibility question application exists, “the trial court’s about a witness’s undisputed subject to de facts is of the law appellate (1) novo review.” Vansant v. 474) (1994). Hobbs (2) (a) (620 Hough
2. In Supreme our Court held that when no traffic accident result injuries occurred, in serious or fatalities has but an *2 probable suspect driving officer has cause to believe that the requires alcohol, under the influence of 40-5-55 an arrest § OCGA rights. before the of the consent The court reiterated what it held in Perano v. that the officer must read the
“at the time of to the instant of arrest as the circumstances of the case individual stop In the time was reasonable because of the need to an altercation between Perano and his wife and to allow Perano to calm meaningful Further, down so ofhis would be him. Id. to App. 608) (2006) (“safety Naik v. passenger, security roadway, protec of himself and the purse fragile valuables, tion ofNaik’s and other and Naik’s emotional state”); Marks,
(1999) (arresting dealing officer was awith second intoxicated driver scene); the accident Hollis v. 837) (1998) (deputy suspect 269, 271 had been sprayed pepper spray); 184, 186 with Mason v. 706) (1985) (“investigat[ing] the accident scene and deal vehicle”), with the hazard created the wrecked and other recognized particular similar cases this court that circumstances of may the event authorize a reasonable between the arrest and warnings. question Thus, becomes whether the undue, this case was unreasonable or as the trial court found. appeal, arresting Georgia Trooper
In this State testified that receiving observing “straddling a radio call and Austell’s car pulled probable line,” center dash cause for the initial he him over. As the trial court found appealed ruling, and Austell has not concerning stop. will not discuss the evidence the basis for the According Trooper, pulled to the over, State after Austell was Trooper coming detected the vehicle, smell of alcohol from Austell’s unsteady feet, Austell was Although on his and he stumbled “a little bit.” drinking, Trooper Austell denied that he had been Austell, however, asked him to take an alco-sensor test. did not blow into the but instead exhaled his nose. The Trooper then decided to arrest Austell and reached for his handcuffs. though phone At him, even Austell had his cell with he phone get go another cell back to his car started to away put Trooper him, the handcuffs on Austell Trooper again tried back. When the him and “snatched” his hand from pull away put put his Austell, he continued to the handcuffs on to hands behind his back. Ultimately, Trooper wrestled Austell to ground, forearm, and the side of the head with his struck him on finally put the handcuffs on him. car, in his called the State
The then get car, to remove Austell’s secured Police Post to car, a wrecker composure get car, tried to his started in the back seat of the back, that Austell had vomited saw finally deputy arrive, to the took Austell waited for testified that he read Austell his delayed reading rights because, he get it be safer for him to Austell to had taken j lighted, be, rather than the ail where would on the interstate with the two of According Trooper, custody present. ten them to the Austell was deputy approximately arrived, or fifteen minutes before the it was scene, it another ten or fifteen minutes before he left the took about approxi- five minutes to from the scene to took *3 jail mately another ten minutes after he arrived at the before he read Austell his hearing,
At the the trial court stated that it conclusion the motion to because the warnings timely read. The trial court there was no were not found warnings justification not to read the at the time of the sufficient arrest. We agree. must
Although are mindful of the difficulties the had with opportunities Austell, him various existed for to read Austell rights rights did, before he and our law demands that the be read “at proximity the time of to the instant of might the of the individual case arrest as circumstances supra, (Citation punctuation omitted.) Hough and at Ga. (2) (a). That done in case. was not Although for the the read- various reasons might warnings suggested ofthe in the dissent be Trooper. reasonable, The one were not the reason offered only Trooper gave delaying reading and reason the Austell his that had taken lighted be safer for him to Austell to the where would be, on rather than present. The trial court the interstate with rejected the two of them Trooper’s reasoning, implicitly determining that the say testimony cannot that this decision is was not credible. As we warnings given in which times erroneous, the various accept given it. Tate v. not, we are bound and were have been could State, supra, construe Moreover, also bound to we are at 54. find- trial court’s evidence most ings Id. by granting
Accordingly, did not err motion. Ellington Miller, Judgment Blackburn, J., R affirmed. J., Johnson, Andrews, J., P.
JJ., P. concur. dissenting. Presiding Judge, Andrews, struggle subdued, dark, in this case the officer After a suspicion 240-pound male, of Austell, on handcuffed, a and arrested ofits secured Austell’s car DUI. As the officer lay car. in the back of contents, down and vomited explanation trial court held without Yet the jail approximately 45 minutes after at the consent notice delay.” I believe that this amounted to an “undue Austell’s arrest of law. was erroneous as a matter conclusion hearing arresting at the on was the sole witness officer nothing in trial court’s com- Austell’s motion to suggests hearing in its final order the conclusion of the or ments at testimony. any portion there- of the officer’s that she disbelieved application de of the law to fore review the trial court’s (1994). State, novo. Vansant v. arresting review, standard of the issue is whether Under this a time as close in officer read Austell his “at the circumstances of the individual case instant of arrest as warrant.” Perano early morning darkness, Austell over in the When he working 240-pound trooper, alone, faced a state who was obstreperous. 22-year-old blew air both drunk and who was pulled away nose rather than out his fight him, and continued to handcuffs on pushed guardrail. him In the ten back after the officer onto *4 placing handcuffing him in the rear Austell and minutes or so after compo- regained portion some seat of the — apparently period “out on the an effort which — included sure ground” car. The officer and then reading surely justified in was supra backup at arrived. See notice until this hospital (delay until the defendant was at notice involving justified by of arrest both altercation at scene was wife). defendant and his
By lying time, however, Austell had vomited and was down my judgment, proof car’s rear seat. In of Austell’s incapacity gave delay continued the officer sufficient reason to arriving jail. the notice until at soon See Naik v. 608) (2006) (officer’s passenger’s safety suspect’s “fragile justified emotional state” delay). Finally, 18-minute [Austell] “there is no evidence that by being rights any have benefited informed of his earlier than he App. 559, 561 .’’Edge (1)(a) (487 117)(1997) was (two-hour justified newly hired DOT officer waited for backup actually intoxicated). to insure that defendant was prejudiced by delay. thus cannot show that he was Based on the uncontroverted officer in this case made a reasonable decision to ofthe notice just until after Austell’s arrival at the and Austell did not suffer harm as a result. I therefore dissent. Presiding Judge
I am authorized to state that Johnson this dissent. Decided March Baker, Solicitor-General, M.
Nina Julian A. Assistant appellant. Solicitor-General, for Kert,
Julie A. A06A2266. LAWYERSTITLE INSURANCE CORPORATION v.
NEW FREEDOM MORTGAGE CORPORATION. County jury Mortgage A Fulton found in favor of New Freedom Corporation against on its contractual indemnification claim Law- yers Corporation. Lawyers appeals, contending Title Insurance Title necessary gave that a new trial is because the trial court erroneous jury misrepresentation concealment, causation, instructions on relationships. Lawyers and confidential Title further contends that erroneously granted part New Freedom’s motion in preventing Lawyers introducing limine Title from certain causation misrepresentation evidence. Because the instruction on legally concealment harmful, erroneous and we conclude that Lawyers Title is entitled to a new trial.