THE STATE v. PADIDHAM
A11A0678
Court of Appeals of Georgia
JULY 13, 2011
714 SE2d 657 | 310 Ga. App. 839
PHIPPS, Presiding Judge.
2. Since we have concluded that trial counsel properly preserved his objection to the testimony of the Examining Nurse, we need not address Brown‘s ineffective assistance claim based upon trial counsel‘s alleged failure to do so.
Judgment affirmed. Ellington, C. J., and Doyle, J., concur.
DECIDED JULY 13, 2011.
Kevin C. Armstrong, for appellant.
Gregory W. Edwards, District Attorney, Cania Brown-Gordon, Assistant District Attorney, for appellee.
A11A0678. THE STATE v. PADIDHAM.
(714 SE2d 657)
PHIPPS, Presiding Judge.
Jyothiswar Padidham was charged with driving under the influence (DUI) and speeding. He moved to suppress certain evidence, including the result of an alco-sensor test administered during the traffic stop and the results of an Intoxilyzer 5000 test administered in jail. The trial court granted the motion, and the state appeals. We reverse.
The facts relevant to the motion to supprеss are undisputed. On February 12, 2009, a police officer stopped Padidham‘s car for speeding. When the officer approached the car, he detected an odor of alcohol and noticed that Padidham‘s eyes were bloodshot. At the officer‘s request, Padidham got out of his car and submitted to several field sobriety tests. The officer contacted another officer to bring an alco-sensor device to the scene. While waiting fоr the other officer to arrive, he told Padidham to return to his (Padidham‘s) car because of the weather. The officer told Padidham that he had stopped him for speeding, that he was going to write him a ticket, and that he thought Padidhаm was too intoxicated to drive and was going to verify that. About eight to ten minutes later, when the second officer arrived, Padidham provided a breath sample; it showed the presence of alcohol. The officer then placed Padidham under arrest for DUI, handcuffed him and placed him in the police car. At that point, the officer read Padidham the Georgia implied consent notice, which advised him of, among other things, his right to undergo additional сhemical tests at his own expense and from
At the jail, at about 2:11 a.m., officers gave Padidham a breath test using the Intoxilyzer 5000, which yielded two results (0.129 and 0.126). Padidham was not informed of the test results or given a copy of the test results until 10:00 a.m, as he was leaving the jail.
Padidham moved to suppress the alco-sensor test result on the basis that, inter alia, it was administered before he was read the implied consent notice or advised of his rights against self-incrimination, even though he was in custody at the time. He also sought to exclude the results of the Intoxilyzer 5000 breath test, arguing that he was effectively denied the right to obtain an independent test because he was not advised of the test results at the time the test was administered.
In its order granting the motion to suppress, the trial court found that Padidham was in custody when the officer told him that he was too intoxicated to drive and directed him to sit in his (Padidham‘s) car. The court found that Padidham should have been advised of his Miranda rights before the alco-sensor test was administered; because he had not been so advised, the alco-sensor test result was inаdmissible. Further, the court concluded that the Intoxilyzer 5000 breath test results were inadmissible because they were not delivered to Padidham immediately upon completion of the test.
1. The state contends that the alco-sensor test result was suppressed in error because Padidham was not in custody when the test was administered. We agree.
“An individual must be advised of his Miranda rights, including his right against self-incrimination, only after being taken into custody or otherwise deprived of his freedom of action in any significant way.”2 “[A]lco-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.”3 Although a motorist is deprived of his freedom of actiоn during a traffic stop, such a deprivation does not always trigger the rights set forth in Miranda.4 Instead, “[t]he 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
Padidham was permitted to wait in his own car rather than a police car; he was not handcuffed; and he was told by the officer that he had been stopped for speeding and was going tо be given a ticket. The officer told Padidham that he thought he was too intoxicated to drive, but that he was going to verify this suspicion. He did not tell Padidham that he would be arrested. Padidham may not have been free to leave during the eight to ten minutes that elapsed before the alco-sensor test was administered, but not every detention is an arrest.7
Under the circumstances presented here, a reasonable person in Padidham‘s position would conсlude that his freedom was only temporarily curtailed and that a final determination of his status was simply delayed.8 The trial court erred in granting the motion to suppress the alco-sensor test result.9
2. The state contends that the trial court erred in suppressing the Intoxilyzer 5000 breath test results. It argues that Georgia law
Inasmuch as the issue raised involves uncontroverted evidence “and no questions of credibility are presented, we will conduct a de novo review of the trial сourt‘s application of the law to the undisputed facts.”11
Pursuant to [
Padidham does not argue that the state failed to comply with the rules and regulations set forth by the GBI. Instead, he argues that the state violated a provision of the “Georgia Bureau of Investigation Division of Forensic Sciences Intoxilyzer 5000 Georgia Operator‘s Training Manual,” which he says requires the operator to give the test subject a copy of the test result. He contends that, pursuant to
In granting the motion to suppress, the trial court expressly determined that the cited training manual required the operator to give a copy of the test results to the subject. Further, the court concluded that, although the training manual did not specify when the results must be given to the test subject, they should have been given to him immediately after they were printed. However, the training manual has not been made a part оf the record and cannot be considered on appeal.13 Moreover, administrative, procedural, and clerical steps performed in conducting a test shall not constitute a part of the approvеd method of analysis.14 And, any deviation from the procedure purportedly set out in the training manual would go to the weight rather than the admissibility of the test results.15 The trial court erred in granting the motion to suppress the results of the Intoxilyzer 5000.
Judgment reversed. Andrews, J., concurs. McFadden, J., concurs fully and specially.
MCFADDEN, Judge, concurring fully and specially.
I disagree with the majority only as to the sentence supported by footnote 13. The State, as appellant, had the burden to include in the record all of the materials necessary for this court to decide the appeal. If the State had contended that the training manual required something other than what the trial court found, it would have been the State‘s burden to include the manual in the аppellate record. Thompson v. State, 248 Ga. App. 74, 75 (544 SE2d 510) (2001). It was not Padidham‘s burden, as appellee, to show that the trial court summarized it correctly. But as the manual is not necessary to decide the appeal, I otherwise concur fully.
DECIDED JULY 13, 2011
Rosanna M. Szаbo, Solicitor-General, Jeffrey P. Kwiatkowski, Karen M. Seeley, Assistant Solicitors-General, for appellant.