THE STATE v. YOUNG
A16A1435
Court of Appeals of Georgia
NOVEMBER 2, 2016
793 SE2d 186
DOYLE, Chief Judge.
Ashlеy Wright, District Attorney, Joshua B. Smith, Assistant District Attorney, for appellant. Holly G. Chapman, Katherine M. Mason, for appellee.
Alfreda Jayblee Young was arrested and charged with driving under the influence of alcohol to the extent it was less safe (“DUI less safe“),1 driving under the influence of alcohol with an unlawful blood alcohol concentration (“DUI рer se“),2 and impeding traffic.3 Following a hearing, the trial court granted Young‘s motion in limine to exclude the results of the State-administered chemical testing of her breath, finding that the State failed to establish that she voluntarily consented to the test. The State appeals, and we reverse for the reasons that follow.
When reviewing a trial court‘s grant or deniаl of a motion to exclude evidence of chemical testing, “the trial court‘s findings on disputed facts will be upheld unless clearly erroneous, and its application of the law to undisputed facts is subject to de novo review.”4 Based upon the reading of the implied consent notice and the videotaped recording of Young‘s interaction with the police,5 we conduct a
Although we owe substantial deference to the way in which the trial court resolved disputed questions of material fact [not recorded on a videotape], we owe no deference at all to the trial court with respect to questions of law, and instead, we must apply the law ourselves to thе material facts.7
This includes legal determinations based upon the totality of the circumstances.
So viewed, the record shows that at approximately 2:00 a.m. on December 28, 2014, Gwinnett County Police Department Patrol Officer Jason Bentley was traveling south on Interstate 85 near Beaver Ruin Road when he observed “a lot of commotion,” including vehicles activating their brake lights and swerving. As he neared the scene, Bentley observed a Hyundai Tiburon stopped in one of the middle lanes of the five-lane highway, impeding the flow of traffic and almost causing multiple accidents. Bentley activated his blue lights, approached the vehicle, and made contact with the driver, identified as Young, who was talking on her cell phone.
Bentley smelled alcohol as soon as Young lowered her window, and she appeared visibly upset. Young stated that her vehicle had hydroplaned and that “she pulled off the road . . . because she didn‘t feel safe driving.”8 Bentley obtained Young‘s license and was almost struck by anothеr vehicle as he attempted to walk back to his car, at which point he instructed Young to move her vehicle to the left shoulder between the median wall and the HOV lane.
DUI Task Force Officer Richard Ross then appeared on the scene, and he spoke to Young, who conceded that her vehicle had been
Young agreed to submit to a field sobriety evaluation. She was “slow and unsteady” as she exited her vehicle. Because they were positioned on a major interstate in dark and rainy conditions, Ross instructed Young to sit in Bentley‘s patrol car so that Ross could safely perform a horizontal gaze nystagmus (“HGN“) test. At this point, the camera on the patrol car began recording, аnd it includes the audio of the interaction between Young and the officer.9 According to Ross, he observed six out of six clues during the HGN test, indicating an alcohol concentration of 0.08 grams or more. Ross also asked Young to blow into a portable alco-sensor device, which she did, and her breath tested positive for alcohol. Ross testified that he decided against performing additional field sobriety tests, such as the walk-and-turn and one-leg stand, because of safety concerns.
Based on his investigation, Ross advised Young that she was under arrest for DUI. He then instructed her to exit the patrol car, handcuffed her hands behind her back, searched her, and placed her in the back of his patrol vehicle. Ross then read Georgia‘s implied consent notice for drivers over the age of 21 and asked Young whether she would submit to the State-administered breath test.10 Young immediately replied, “Yes,” without hesitation. Ross characterized
After retrieving her purse from her vehicle, Ross transported Young to the police precinct, sat her in front of the Intoxilyzer 9000, which was located in a cubicle, gave her verbal instructions, and then administered the test. According to Ross, Young “did not appear reluctant,” was “comprehensive [sic],” seemed intеlligent, listened to his instructions, and did not refuse to take the test. Ross “[did not] have any sort of concerns that [Young] was so impaired that she couldn‘t consciously make a decision.” Young remained handcuffed during the testing, which indicated blood alcohol concentrations of 0.160 and 0.151.
Young filed a motion in limine to exclude the results of the State-аdministered breath test, arguing that she did not voluntarily consent to it and that it violated the United States and Georgia Constitutions. Following a hearing at which both Bentley and Ross testified, the trial court granted Young‘s motion solely based upon its conclusion that “the State failed to carry its burden in establishing an actual consent to the search of . . . Young‘s breаth that was free and voluntary.” In the order, the trial court stated:
Young was asked if she would submit to the testing under the implied consent law but was not asked if she would consent to a search and test of her bodily substances. Young‘s affirmative response was to the officer[,] and she was submitting to his authority to conduct the test. [Young] was told that the law requires her to submit to the test[,] and [she] asserts that any subsequent submission must be characterized as mere acquiescence to a claim of lawful authority, and Young was not advised that she could refuse to submit to the test.
In evaluating the totality of the circumstances, the [c]ourt finds that Young was under arrest and in handcuffs when the submission to the search was requested. [Young] was not informed that the test was not mandatory[,] and the language of the implied consent warning suggests otherwise as it begins “Georgia law requires that you submit. . . .” [Young] was not advised of her Miranda11 rights[,] and she was not asked if she was freely and voluntarily agreeing to be tested.
The Fourth Amendment of the United States Constitution and Article I, Section I, Paragraph XIII of the Georgia Constitution both protect an individual‘s right to be free of unreasonable searches and seizures, and apply with equal force to the compelled withdrawal of blood, breath, and other bodily substances. Because a breath test is a search within the meaning of the Fourth Amendment, absent a warrant, the State must show that it falls into one of the specifically established and well-delineated exceptions to the warrant requirement.
Consent is a valid basis for a warrantless search where it is given freely and voluntarily, and the State does not argue that any other exception might apply. Therefore, [in this case,] the only question in regard to the validity of the search is whether the State met its burden of proving that [Young] actually consented freely and voluntarily under the totality of the circumstances. Historically, we considered a defendant‘s affirmative response to the reading of the implied consent notice as sufficient to allow a search of . . . her bodily fluids without further inquiry into the validity of the defendant‘s consent.12
However, in Williams [v. State],13 the Supreme Court of Georgia rejected this rule automatically equating an affirmative response with actual consent to search, holding instead that mere compliance with statutory implied consent requirements does not, рer se, equate to actual, and therefore voluntary, consent on the part of the suspect so as to be an exception to the constitutional mandate of a warrant. Thus, the State is required to demonstrate actual consent for [S]tate-administered testing for the purpose of exception to the warrant requirement. And in determining whether the defendant gave actual consent to a [S]tate-administered breath test, the trial court is required to address the voluntariness of the consent under the totality of the circumstances.14
[V]oluntariness must reflect an exercise of free will, not merely a submission to or acquiescence in the express or implied assertion of authority. Consequently, the voluntariness of consent to search is measured by evaluating the totality of the circumstances, which includes factors such as prolonged questioning; the use of physical punishment; the accused‘s age, level of education, intelligence, length of detention, and advisement of constitutiоnal rights; and the psychological impact of these factors on the accused. And while knowledge of the right to refuse consent is one factor to be taken into account, the government need not establish such knowledge as the sine qua non of an effective consent.15
Instead, “[t]he court should consider whether a reasonable person would feel free to decline the officers’ request to search or otherwise terminate the encounter. Mere acquiescence to the authority asserted by a police officer cannot substitute for free consent.”16
Here, the evidence, including the videotape of the stop, “does not show that the officers used fear, intimidation, threat of physical punishment, or lengthy detention to obtain [Young‘s] consent” to the breath test, and the officers and Young “conducted themselves calmly.”17 The trial court did not find that Young‘s intoxication, “youth, lack of education, or low intelligence somehow negated the voluntariness of her сonsent.”18 Instead, the court concluded that Young‘s consent was involuntary because the police failed to advise her of her Miranda rights or to inform her that the test was not mandatory and because the language of the implied consent warning suggests otherwise. But as we have previously concluded, the implied consent notice read to Young “accurately recites Georgia law as contained within
The trial court also based its finding that Young did not voluntarily consent to the test on the fact that she was in handcuffs when her consent was requested. But it is well settled that “the fact that [Young] was in handcuffs [did not] negate her ability to give consent.”22
Based upon our de novo review of the undisputed evidence before the trial court, including the video recording, and our application of the law to these undisputed facts, we conclude that the State met its burden of proving that Young voluntarily consented to the breath test under the totality of the circumstances.23 Young immediately verbally agreed to submit to the requested breath test, and there is no evidence of “any coercive circumstances that would undercut the voluntariness of [her] consent.”24 Because “there is no evidence that [Young‘s] consent was anything but free and voluntary,” the trial court erred by granting her motion in limine to exclude the results of the State-administered breath test.25
Judgment reversed. Andrews, P. J., and Ray, J., concur.
DOYLE
CHIEF JUDGE