Jаmes Norris was charged with DUI, failure to maintain lane, and possession of an open container of alcoholic beverage while operating a vehicle. He filed a motion to suppress various evidence, including the results of two alco-sensor tests administered to him during a traffic stop. The trial court granted Norris’s motion to suppress the results of the alco-sensor tests. Under the authority of OCGA § 5-7-1 (a) (4), the State аppeals. Under the “right for any reason” rule, we affirm.
The only witnesses who testified at the hearing on the motion to suppress were the two officers who participated in the traffic stop, Lieutenant Chris Jonеs and Captain Al Thompson of the Dooly County Sheriffs Department. Each of their patrol cars was equipped with audio/video recorders that captured parts of the traffic stop. Those tapes were played at the hearing on the motion to suppress. The evidence presented at the hearing showed the following.
On April 29, 2004, Jones observed Norris’s truck weaving in and out of its lane of travel on Interstatе 75. Jones stopped the truck and asked Norris to step out of the vehicle. When Norris did so, he appeared unsteady on his feet and exuded an odor of alcoholic beverage. Jones, therefоre, asked Norris to provide a breath sample by blowing into an alco-sensor machine, but Norris refused.
Jones testified that because he thought he had probable cause to believe that Norris was driving under thе influence of alcohol even without the results of the alco-sensor test, he then explained to him that he was going to arrest him for DUI and asked him to turn around and put his hands behind his back. Jones’s videotape of thе traffic stop clearly shows, however, that although Jones instructed Norris to turn around and put his hands behind his back after he refused to perform the alco-sensor test, Jones did not tell Norris that he was under arrest for DUI. In any event, Norris thereupon asked whether he had to give the breath sample. Jones testified that he responded in the affirmative, even though he knew that Norris had a legal right to decline. Norris then performed the breath test.
Because Norris’s breath sample registered positive for alcohol, Jones summoned Thompson to the scene to administer a second alco-sensor test to Norris. Because the second test also registered positive for alcohol, Jones then told Norris he was arresting him for DUI, handcuffed him, and began to read him his implied consent notice. While Jones was doing so, Norris collapsed into the roadway. After the officers pulled him to the side of the road, he regained consciousness, and the officers summoned an ambulance. Norris, however, refused medical treatment. Jones completеd the reading of the implied consent notice and asked Norris whether he would submit to a state-administered blood test. Norris refused.
Norris moved to suppress evidence of the results of the alcosensor tests, evidence of his refusal to submit to the blood test, and the audio and video recordings of the traffic stop. The trial court suppressed the results of the alco-sensor tests but refused to suppress evidence оf Norris’s refusal to submit to the blood test and the recordings of the traffic stop. In so ruling, the court determined that Jones was authorized to stop Norris’s truck after observing it weaving. The court, however, rejected Norris’s claim that Jones coerced him into taking the alco-sensor tests by placing him under arrest when he refused to submit to the first test. The court determined that Norris had not been arrested at the time he agreed to perform the alco-sensor test because Jones had not told him he was under arrest and had not yet handcuffed him. Nonetheless, the court
“Georgia law recognizes three tiеrs of police-citizen encounters: (1) consensual encounters; (2) brief detentions that must be supported by reasonable suspicion; and (3) arrests, which must be supported by probable cause.” 1 A law enforcement officer’s stop and detention of a motorist to investigate a possible DUI violation is a second-tier encounter. 2 The detention escalates to a third-tier encounter if the officer detеrmines that he has probable cause to believe the motorist has been driving under the influence and arrests him for DUI. 3
OCGA § 40-5-55, commonly referred to as Georgia’s implied consent statute, provides in subsection (a) that Subsection (b) of OCGA § 40-5-55 recognizes, however, that a driver’s implied consent to chemical testing of his bodily substances may be withdrawn. 4 So too does OCGA § 40-6-392, 5 the statute that governs the administration of chemical tests for alcohol or drugs and the admissibility of the results of such tests in DUI proceedings.
any person who operates a motor vehicle upon the highways or elsewhere throughout this state shall be deemed to have given consent, subject to Codе Section 40-6-392, to a chemical test or tests of his or her blood, breath, urine, or other bodily substances for the purpose of determining the presence of alcohol or any other drug, if arrested for any оffense arising out of acts alleged to have been committed in violation of Code Section 40-6-391 or if such person is involved in any traffic accident resulting in serious injuries or fatalities.
In Turrentine v. State, 6 we found OCGA § 40-6-392 inapplicablе to alco-sensor test results because they are not used as “evidence of the amount of alcohol or drug in a person’s blood,” 7 as specified in OCGA § 40-6-392 (a), but instead are used “as an initial screening device to aid the police officer in determining рrobable cause to arrest a motorist suspected of driving under the influence of alcohol.” 8 In contrast, OCGA § 40-5-55 applies to chemical tests of the “blood, breath, urine, or other bodily substances for the purpose of determining the presence of alcohol or any other drug.” 9 Thus, it does apply to an alco-sensor test.
In Cooper v. State, 10 our Supreme Court held that
to the extent that OCGA § 40-5-55 (a) requires chemical testing of the operator of a motor vehicle involved in a traffic accident resulting in serious injuries or fatalities regardless of any dеtermination of probable cause, it authorizes unreasonable searches aril seizures in violation of the State and Federal Constitutions. 11
In light of
Cooper,
we held in
Buchanan v. State
12
that OCGA § 40-5-55 provides that consent is implied only if a person is placed under a third-tier arrest based on probable cause to believe he has violated OCGA§ 40-6-391 (our DUI statute).
13
A third-tier arrest
The test for determining whether a person has been placed under custodial arrest
is whether the individual was formally arrested or restrained to a degree associated with a formal arrest, not whether thе police had probable cause to arrest. The test... is whether a reasonable person in the suspect’s position would have thought the detention would not be temporary. A trial court deciding whether to admit evidence must apply this objective test; it is the reasonable belief of an ordinary person under such circumstances, and not the subjective belief or intent of the officer, that determines whether an arrest has been effected. 15
The issue is a mixed question of law and fact. 16 Therefore, to the extent that determination of the issue hinges on resolution of factual questions, we construe the evidence most favorably to uphold the trial court’s findings and accept those findings unless they are clearly erroneous; but we independently apply the legal principles to those facts. 17
Here, the trial court determined that Jones did not place Norris under arrest based on its finding that Jones merely asked Norris to turn around and place his hands behind his back after he refused to perform the aleo-sensor test, and that Jones did not tell Norris he was under arrest. Construing the evidence most favorably to those findings, we uphold them. But even though the trial court found that Jones did not inform Norris that he was under arrest, the court did fin d that he instructed him to turn around and place his hands behind his back. Upon being tоld that, without more, a reasonable person in Norris’s position would have thought that he was going to be handcuffed and formally arrested or restrained to a degree associated with a formal arrest. 18 Thus, applying the law to the facts found by the trial court, we conclude that Norris’s detention ripened into a custodial arrest for DUI even though Norris was not expressly informed that he was being arrested for a DUI violation.
As a result, OCGA § 40-5-55 then became applicable. Norris’s implied consent to breath testing, and his right to withdraw his consent, were therefore in effect when he asked Jones whether he had to take the alco-sensor test. For these reasons, we agree with the trial court that Norris was given inaccurate information depriving him of the ability to make an informed decision as to whether to take the
alco-sensor tests.
19
Moreover, decisions by our Supreme Court in cases such as
Keenan v. State
20
and
Price v. State,
21
as well as decisions by this court in cases such as
State v. O’Donnell,
22
hold that аlco-sensor and other field sobriety tests given to a person under custodial arrest are inadmissible where, as here, administration of the tests has not been preceded by a
Miranda
warning.
23
Here, no
Judgment affirmed.
Notes
Hendrix v. State,
See
Long v. State,
See
Childress v. State,
See
Allen v. State,
See id.; OCGA § 40-6-392 (d).
Id. at 146 (1) (punctuation omitted; emphasis in original).
Id.
OCGA § 40-5-55 (a) (emphasis supplied).
Id. at 291.
Id. at 150 (1).
See
Evans v. State,
State v. Dixon,
State v. Lentsch,
See
Robinson v. State,
Compare
Abrahamson v. State,
See generally
State v. Terry,
2
Other decisions of both the Supreme Court and this court сall into question the accuracy of that view. See
Cooper v. State,
supra,