State v. BogerState v. Boger
- Reporters:
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- Before:
- Miller
Ryan Bennett Boger was charged with several traffic offenses, including driving under the influence of alcohol to the extent that it was less safe for him to drive. Boger filed various motiоns in limine, including a motion to exclude any alleged refusal to submit to a chemical tеst. 1 The trial court granted all but one of Boger’s motions. 2 The State appeals, arguing that the court erred in granting the remaining motions in limine. We affirm in part and reverse in part.
In reviewing a motion to suppress, we must construe thе evidence most favorably to uphold the findings and judgment of the trial court, and the cоurt’s findings as to disputed facts and credibility must be adopted unless clearly erroneous. 3
1. The trial court concluded that the arresting officer led Boger to believe that he had a right to an attorney prior to being required to submit to the breath test, even though it is wеll established that there is no right to have counsel present when requested to submit to any test of the breath, blood, or urine. 4 After several failed attempts to get Boger tо properly breathe through the alco-sensor, the colloquy between the оfficer and Boger was as follows:
Officer: Okay. Which part of “blow steady through the tube” dо you not understand? Okay? It’s real simple, my 3-year-old can do this — my 3-year-old nephew. Takе a big —.
Boger: I feel like —.
Officer: — deep —.
Boger: I need to talk to a lawyer.
Officer: Okay; do you want a lawyer?
Boger: Can I have a lawyer?
Officer: Sure; after I arrest you and take you down to the jail
and all that good stuff.
Boger: Okay.
Officer: Okay. Do you want one?
Boger: Let’s do it that way.
Officer: Okay; you got one. Turn around.
The officer then рlaced Boger under arrest and read him his implied consent rights.
Here, the officer’s response to Boger’s request for an attorney was for the most part a corrеct statement of law. 5 The officer’s explanation informed Boger that he was not entitled to an attorney when the officer repeatedly requested that he brеathe into the alco-sensor, but that he could have an attorney once hе was arrested and taken to jail. Therefore, Boger’s refusal to continue the аlco-sensor test could not have been based on a belief that he was entitlеd to an attorney prior to taking the test. The court erred in excluding evidence of Boger’s failure to submit to the alco-sensor test and in granting all motions on this basis.
2. After Bogеr was arrested and taken to jail, the officer prepared the Intoxilyzer maсhine and Boger refused to submit to this test without an attorney. At this point, Boger could have believed that he was then entitled to an attorney, as previously explained by the officer: “Sure [you can have a lawyer]; after I arrest you and take you down to thе jail and all that good stuff.” Thus, the statement, although substantially correct, was misleading in that аfter Boger was arrested and at the jail, he believed that he was then entitled to counsel prior to complying with the implied consent law and taking the Intoxilyzer test (when nо such right existed). 6 For this reason, the court did not err in excluding Boger’s refusal to submit to the Intoxilyzеr test. 7
Simply put, any evidence involving the alco-sensor test given at the scene оf the stop was improperly suppressed, but evidence as to the Intoxilyzer test рrovided at the police station should be sup pressed as Boger, misled by the officer’s statement, believed that he was entitled to an attorney prior to submitting to such test.
Therefore, we reverse the court’s grant of Boger’s motion in limine to exclude defendant’s alleged incriminatory statements and acts, all evidence gathered as a result of an unlawftd seizure, and to suppress evidence gathered in violation of defеndant’s request for counsel (with the exception of any evidence as to the Intоxilyzer test). We also reverse the grant of Boger’s motion to exclude any alleged refusal to submit to the alco-sensor test, but affirm the exclusion of Boger’s failure to submit to the Intoxilyzer test.
Judgment affirmed in part and reversed in part.
Andrews, P. J‘., and Eldridge, J., concur.
Notes
Boger also filed motions in limine to exclude defendant’s alleged incriminatory statements and acts, all evidence gathered as a result of an unlawful sеizure, and results of the horizontal gaze nystagmus test and to suppress evidence gathеred in violation of defendant’s request for counsel.
The court denied Boger’s motion to exclude the results of the HGN test.
Self v. State, 245 Ga. App. 270, 272-273 (2) (537 SE2d 723) (2000); State v. Kirbabas, 232 Ga. App. 474, 478-479 (1) (a) (502 SE2d 314) (1998).
See Rawl v. State, 192 Ga. App. 57, 58 (4) (383 SE2d 903) (1989); Oyler v. State, 175 Ga. App. 486, 487 (1) (333 SE2d 690) (1985).
See Ross v. State, 254 Ga. 22, 26 (3) (b), n. 3 (326 SE2d 194) (1985) (the Miranda right to counsel attaches if an accused is in police custody and subjected to police interrogation).
See Rawl, supra, 192 Ga. App. at 58 (4).
Compare Beasley v. State, 204 Ga. App. 214, 215-216 (1) (419 SE2d 92) (1992) (misstatement of law induced consent to urine test).