State v. CalhounState v. Calhoun
Jаcquie Somer Calhoun was arrested and charged by accusation with DUI,
The evidence presented at the hearing on Calhoun’s motion showed that an officer with the Gwinnett County Police Department DUI Task Force was on routine patrol on Pleasant Hill Road when he observed Calhoun’s blue Miata, which was directly ahead of him in the left turn lane, make a “very wide, sweeping turn out to the right side of the roadway,” into a yellow cross-hatched triangle. The turn brought the car into another lane, forcing the driver to make “a sharp, jerking motion back to the left” to return to her lane of travel.
The officer pulled Calhoun’s vehicle over and asked Calhoun for her driver’s license and proof of insurance. As he was standing at the driver’s sidе window of Calhoun’s car, he smelled the odor of alcohol coming from the car. When he asked Calhoun to step out of the car, he noticed that she was unsteady on her feet. He also determined that the strong odor of alcohol was emanating from Calhoun. In addition, Calhoun’s speech was “somewhat thick,” her face was pale, her eyes were glazed, and she swayed when she walked. Calhoun was cooperative initially, but she became argumentative when the officer requested thаt she perform voluntary field evaluations. She refused initially, but eventually acceded to the officer’s request, and the evaluations were performed. The officer detected six clues out of a possible six on the horizontal gaze nystagmus test. He testified that Calhoun transposed some of the letters in the alphabet evaluatiоn, missed heel to toe, stepped off line, and lost her balance during the walk and turn evaluation and refused to take an alco-sensor test. In the officer’s opinion, Calhoun was a less safe driver, and he placed her under arrest. He then read her the Georgia Implied Consent Warning for persons under 21 years of age and requested that she submit to a breath test. Calhoun agreed, and the officer transported her to the Gwinnett County Jail, where the Intoxilyzer machine was located. He observed Calhoun breathing in “short, choppy . . . puffs in the machine and not allowing it to get enough going into it.” The test was run twice, and in each instance the printout read “insufficient sample.”
At this point in the trial, the trial court recessed the hearing, both because defense counsel was experiencing medical problems and the Intoxilyzer operator had not yet arrived. Although the hearing reconvened several months later, the Intoxilyzer operator was absent.
Calhoun filed a motion to dismiss and/or to suppress, arguing in her аmended motion to suppress that her turn was made in “a reasonable manner, completely within her lane of traffic.” She argues that she was pulled over “despite an absence of any specific and articulable facts which, taken together with rational inferences from those facts, reasonably warranted such an intrusion” аnd without “any objective manifestation that she was, or was about to be, engaged in criminal activity.” The trial court granted both motions, finding only that “there is a problem with the stop that merits granting Defendant’s motions.”
The State contends the trial court erred in its ruling because the arresting officer had sufficient articulable suspicion to conduct a briеf investigatory stop of Calhoun’s car. We agree.
We note initially that, as we read Calhoun’s motions, only the motion to suppress implicates the stop. Calhoun’s motiоn to dismiss is predicated upon issues surrounding Calhoun’s refusal or inability to provide a sufficient breath sample for analysis. Calhoun’s amended motion raises the issue of the validity of the stop of her car, but amends only the motion to suppress, not the motion to dismiss. The rationale for the trial court’s order is recited, and that rationale apрlies only to the motion to suppress.
In this case, the officer was the only witness who testified at the hearing. Calhoun did not present any evidence contradicting the officer’s account оf the stop. “When the evidence is uncontroverted and no issues of witness credibility are presented, we review de novo the trial court’s application of the lаw to undisputed facts.” (Citation omitted.)
State v. Hammang,
Here, the State demonstrated facts frоm which we can determine that the stop was not pretextual, arbitrary, or harassing. It was not based upon a mere “hunch,” but upon the officer’s observation of erratiс driving behavior. “No purpose of deterrence would be served by suppressing the evidence found in this case, which was the product of a stop prompted by the оfficer’s legitimate concern for public safety.” (Citation and punctuation omitted.) Hammang, supra. The trial court erred in granting Calhoun’s motion to suppress.
Because the trial court’s ruling appears to grant the motion to dismiss as well, we now address that motion. The motion to dismiss was based upon the circumstances surrounding the breath test. Calhoun argued that the accusation should be dismissed because she repeatedly asked for “another opportunity to take the test or to submit to an alternative method of testing or to obtain a test of her own choosing at her own expense,” which requests were denied. Calhoun contended that these circumstances deprived her of due process of law “by eliminating her opportunity to gather exculpatory evidence during the limited window of availability,” and that as applied,
Judgment reversed.
Notes
Calhoun has not filed a brief in this court.