I was happy to help Nina M. Svoren of NMS Law Firm, LLC to put together this legal update for presentation to the 2017 Georgia DUI Institute in Atlanta on November 30, 2017.  This was a cooperative effort.

2017 Georgia DUI Law Update

Right not to Incriminate

Olevik v. State, 2017 Ga. LEXIS 898, dec. Oct. 16, 2017.

Georgia Supreme Court reaffirms that Ga. Const. 1983, Art. I, Sec. I, Par. XVI encompasses not only the right to not give testimony or make custodial statements against oneself, but also the right not to do an act which incriminates oneself. Breathing deep lung air into a breath testing device does constitute such an act, overruling a contrary holding in Klink v. State, 272 Ga. 605 (2000). Nonetheless, a person can voluntarily consent to submit to a breath test after having been read Georgia's implied consent notice codified at O.C.G.A. §40-5-67.1. Olevik argued the notice was coercive and misleading and that he, nor anyone else, could be said to have voluntarily consented after hearing it read. The Supreme Court rejected the facial and “as applied” challenges but suggested the legislature consider amending the statute to more clearly explicate the right to refuse and more accurately articulate the likelihood of license suspension for a .08 or higher test. Because there was no other evidence that Olevik did not voluntarily consent, the decision of the trial court to deny the motion to suppress was upheld.

An unanswered question is whether a person who refuses the breath test is still subject to having such refusal admitted in evidence against them since they have a state constitutional right to decline to do the act. And, if the refusal to submit to breath testing is inadmissible on this basis, is a refusal to submit to blood testing also inadmissible, despite the fact that having blood drawn does not constitute an act of self incrimination?

Fazio v. State, 2017 Ga. LEXIS 887, dec. Oct. 16, 2017

Supreme Court relied on Olevik, decided the same day, to hold that because breath tests can be conducted without a warrant as a search incident to arrest (Birchfield v. North Dakota, 136 S. Ct. 2160 (2016)), O.C.G.A. §40-5-67.1 does not violate the 4th Amendment - breath tests taken pursuant to implied consent do not constitute unreasonable searches and seizures. And, while the implied consent may contain some deficiencies (i.e. misstates the likelihood of a license suspension for taking test and blowing .08 or higher - “license may be suspended” versus refusing “license will be suspended”) Supreme Court can't say this deficiency is likely to play a dispositive role in the decision to take or refuse the test, and is therefore not violative of due process. A 5th Amendment challenge to implied consent was held to be waived because not raised in trial court.

State v. Licata, 2017 Ga. App. LEXIS 507, dec. Oct. 26, 2017

Officer read Miranda warning to Licata prior to him performing field sobriety evaluations. After allegedly failing field tests and being placed under arrest, Licata wanted to consult with an attorney but was told he could not do so before either taking or refusing breath test. Trial court ordered suppression of field tests for failure to inform Licata of his right to refuse to perform physical acts (Miranda warning only informs of right to remain silent – no mention of physical acts). Reversed by Court of Appeals, holding Miranda warning is sufficient to render evidence of field sobriety tests admissible. Cited Price v. State, 269 Ga. 222 (1998) (failure to give Miranda warning to suspect in custody rendered field tests inadmissible).
Additionally, trial court suppressed refusal to submit to breath test because Licata requested an attorney pursuant to the Miranda warnings that had been read to him. Reversed by Court of Appeals. An individual is not entitled to advice of counsel when asked to submit to breath test under implied consent law. Officer did not confuse Licata by reading Miranda because he twice clarified after that that Licata was not entitled to consult an attorney regarding whether to submit to breath test. Opinion by McFadden.

State v. Council, 2017 Ga. App. LEXIS 531, dec. Oct. 30, 2017

Trial court granted motion to suppress results of breath test on the basis that it was obtained in violation of Council's Georgia Constitutional right against self-incrimination. Council was involved in an accident but did not appear to be injured and refused medical treatment. Suspecting she was under the influence of alcohol, responding officer summoned a DUI task force officer to conduct a DUI investigation. She was allowed to answer her phone on the scene during the investigation. She consented to the breath test after asking some questions. On the ride to the station, her phone rang again but she was not allowed to answer it. Arresting officer told her: “when we get to the precinct, once we're finished there at the precinct, I'll let you call [your boyfriend] to make sure [your daughter] gets checked on.” Court of Appeals held that this did not constitute no evidence that she was forced to take the breath tests against her will in order to make the phone calls, as the trial court appeared to imply. Instead, she was not going to be allowed to make the calls until she either took the breath tests or refused to do so. Thus, refusing to allow her to make the calls did not constitute coercion. This case was decided shortly after Olevik. Indeed the Court made note of the recent decision as holding that Georgia's Constitutional right against self-incrimination protects individuals from having the results of a compelled breath test, or their refusal to submit to such testing, admitted against them in any criminal proceeding. Opinion by Reese.
Schmitz v. State, 2017 Ga. LEXIS 937, 2017 WL 4870960 dec. October 30, 2017.
i) Schmitz challenged the validity of his consented to breath test based on actual voluntariness and argued that OCGA 40-5-67.1(b)(2) was unconstitutional on its face in that the implied consent notice violates Due Process because the warning in the statute is false and misleading to the point that no consent to a breath test could be considered voluntary. The court rejected that argument relying on the language of Olevik which found that the implied consent notice was not by itself coercive.

Williams issue cases

Found to be Voluntary

McKibben v. State, 340 Ga. App. 89, dec. Jan. 23, 2017

Following the reading of implied consent, McKibben said yes to blood test, but did not ask any questions about implied consent or his rights, did not request an attorney, never indicated an unwillingness to have a blood sample taken, and was cooperative with the firefighter who drew the blood. The trial court found that McKibben voluntarily consented to the blood draw. Additional considerations were that the blood was taken within one hour of arrest and was not the result of a prolonged detention, threats, promises, or coercion such as withholding food or drink or refuse the use of the restroom. Williams did not create a per se rule that State must always show more than consent under the implied consent statute. Totality of the circumstances of consent must be reviewed: threats or coercion; inability to give valid consent due to (for example) youth or lack of education; and whether a reasonable person would have felt free to decline the officer's request. Under this analysis, the consent in this case was voluntary. Opinion by Dillard.

Jackson v. State, 340 Ga. App. 228, dec. Feb. 15, 2017

Officer testified that Jackson agreed to blood test; that the officer did not threaten him, make any promises to him or threaten him with bodily harm. Jackson voluntarily extended his arm for the blood draw. There was no evidence that the officer used fear, intimidation, threat of physical punishment or lengthy detention to obtain the consent. Jackson did not argue that youth, lack of education, or low intelligence negated the voluntariness of the consent. Affording proper deference to the trial court that heard the testimony first hand, it was not error to deny motion to suppress results of blood test.

State v. Nicholson, 342 Ga. App. 118, dec. June 27, 2017

The trial court granted Nicholson's motion to suppress the State blood test on the basis that Nicholson did not voluntarily consent. The State appealed. The Court of Appeals states that it defers to the trial court's factual findings and credibility determinations but reviews de novo the application of the law to the undisputed facts. However, where the facts are “plainly discernible” from the dashcam recording, the Court of Appeals will also review the facts de novo. Nicholson was stopped on his motorcycle for not wearing a helmet. After the stop, the officer detected an odor of intoxicants. Nicholson admitted consuming two beers. The trooper began a DUI investigation which results in an arrest for DUI. Implied consent was read for blood. Nicholson agreed. The trial court found that there was not voluntary consent, only submission to the officer's instructions. Court of Appeals disagreed, holding undisputed facts show that Nicholson was neither injured nor threatened with harm during his interaction with the trooper. Nicholson appeared to be acting and responding rationally and did not appear to be confused or extremely intoxicated. Trooper's demeanor and tone of voice were friendly and he allowed Nicholson to ask questions and even let Nicholson perform the walk and turn test on more even ground. Court noted that Nicholson did not argue that youth, lack of education, or low intelligence somehow negated the voluntariness of his consent. Consent was voluntary. Opinion by McMillian.

Found Not to be Voluntary

State v. Brogan, 340 Ga. App. 232, dec. Feb. 15, 2017

Brogan was found asleep behind the wheel in the middle of a busy intersection. Her face was lethargic and droopy; her speech slow and slurred. She was unsteady on her feet. The officer determined that it would not be safe for her to perform FST's. She held her arms in a stiff, unnatural posture, with the stated purpose of allowing the officer to check her blood pressure even though the ambulance personnel had just checked her blood pressure. In the video, she appeared confused and lacking control of her physical movements. The officer smelled no alcohol. Brogan stated she had taken allergy medication. After placing her under arrest and into the patrol car, he read implied consent, but her response could not be seen or heard on the video. The officer said she bobbed her head when he requested blood, but he “could not speak to how she articulated yes.” The trial court found that the State has not met its burden of showing voluntary consent. Because the facts were disputed, it was up to the trial court to consider credibility and to determine the material facts. That evidence did not demand that the trial court's decision be reversed. Had this been an appeal of a denial of a motion to suppress, the Court stated the result could have been different. Opinion by McFadden.

In the Interest of C. W., 342 Ga. App. 153, dec. June 28, 2017

C.W., a juvenile, stated “yes” to the trooper's reading of implied consent and request for a blood test. Trooper testified that he was “ very stern” while interacting with C.W. The paramedic required the signature of an adult on a consent form. The trooper signed that form without reading it to the juvenile. The juvenile's parents arrived after blood already drawn. The trial court found that given the juvenile's youth and the other circumstances, a reasonable person would not have felt free to decline the trooper's request to submit to the blood test. The Court of Appeals agreed that in the absence of evidence demanding a contrary finding, the trial court must be affirmed. Opinion by McFadden with special concurrence by Bethel, who expressed concern that this decision might be incorrectly read to hold that age along can be the determining factor of the voluntariness of consent.

State v. Osterloh, 2017 Ga. App. Lexis 396, dec. Aug. 30, 2017

Osterloh was involved in a wreck and lost consciousness. He awoke on the side of the road with his head outside the passenger window. When deputies and firefighters arrived, Osterloh told a deputy that his vehicle had been struck three times, that he had a metal rod in his leg, had struck his head in the wreck and was not on medication. He walked with a significant limp and reported that he had injured his leg. After several minutes of conversation, Osterloh started screaming and ran toward the road, attempting to flag down a passing vehicle. He was then restrained, handcuffed and forced to the ground. He then began speaking gibberish. He was unable to respond to officer requests for him to calm down. After first responders checked him out, the deputy arrested him and read implied consent. During implied consent, he interrupted the officer saying, “I ain't going to trial fucking dumb ass. What you read that for?” The officer asked for a blood test, and Osterloh said “yeah.” There were no threats, but Osterloh was pinned down on the ground during the reading of implied consent. He vomited a purple liquid and remained pinned to the ground for 15 minutes, part of which he occasionally shouted gibberish. He was then taken to the hospital where blood was drawn. He spent three days in intensive care, was placed in a medically induced coma, vomited blood, had blood in his urine and suffered respiratory failure. As a result of the blood test, he was charged with DUI- drugs (methamphetamine). The voluntariness of the consent to the blood test was challenged. Osterloh testified as to his lack of memory of being read implied consent. The trial court found that Osterloh was clearly injured and incapable of making any kind of rational decision. The Court of Appeals agreed that the State had failed to meet its burden of showing that Osterloh gave his consent freely and voluntarily. The Court noted that nothing prevented the State from having obtained a search warrant for Osterloh's blood.

Scope of implied consent purpose

Jackson v. State, supra, 340 Ga. App. 228 (2017)

Court rejected argument that this language in O.C.G.A. §40-6-392 prohibits drawing blood to analyze for drugs:

When a person shall undergo a chemical test at the request of a law enforcement officer, only a physician, registered nurse, laboratory technician, emergency medical technician, or other qualified person may withdraw blood for the purpose of determining the alcoholic content therein, provided that this limitation shall not apply to the taking of breath or urine specimens.

When viewed in context with O.C.G.A. §40-5-55, which states:

[A]ny person who operates a motor vehicle upon the highways or elsewhere throughout this state shall be deemed to have given consent,subject to Code 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 offense arising out of acts alleged to have been committed in violation of Code Section 40-6-391

and other portions of §40-6-392 which do reference drugs, it is clear that the legislature did authorize analysis of blood for drugs and/or alcohol in DUI cases. Opinion by Barnes.

Admissibility of Prior Acts

Monroe v. State, 340 Ga. App. 373, dec. Feb. 23, 2017

Monroe was arrested for DUI and refused breath testing after being read implied consent. Trial court admitted evidence of a prior DUI conviction under O.C.G.A. §24-4-417(a)(1) for the purpose of showing knowledge and §24-4-404(b) to show intent. Monroe argued that the prior offense was not relevant to his knowledge or intent. The Court found that the prior conviction was relevant to knowledge where, in the current case, the driver refuses testing because it might properly be inferred from evidence of prior occasions on which the accused had driven under the influence that the accused had an awareness that his ingestion of an intoxicant impaired his ability to drive safely on this occasion. Also, the level of intent for the prior DUI and this one was the same (general intent to drive while under the influence of alcohol), therefore it was not an abuse of discretion to admit for this purpose. Facial and other constitutional challenges to the two statutes were held not to be preserved for appeal.

Danley v. State, 342 Ga. App. 61, dec. June 23, 2017

A pretrial notice and hearing occurred regarding Danley's previous DUI arrest which involved a BOLO, odor of alcohol, bloodshot, watery eyes, slurred speech, admission of drinking and positive alcosensor result. In the earlier case, Danley refused blood testing. The State offered the prior conviction for the purpose of showing that Danley knew that drinking impaired his driving. The trial court found that this was a valid purpose under O.C.G.A. § 24-4-417(a) and that the probative value outweighed any prejudicial effect or possibility of jury confusion. The Court of Appeals agreed. Opinion by Branch.

Jones v. State, , 301 Ga. 544, dec. June 26, 2017

Originally, the trial court allowed the prior conviction to be introduced to show intent and knowledge under O.C.G.A. §24-4-404(b). The Court of Appeals reversed, holding the evidence was not relevant and therefore inadmissible. The Supreme Court reversed on relevancy, but remanded for a ruling on whether the trial court properly found the probative value was not substantially outweighed by the prejudicial effect of the evidence (the balancing test required by O.C.G.A. §24-4-403). The Court of Appeals upheld the trial court's determination without much analysis – merely determined that the trial court had decided correctly on that point. An appellate court must examine whether the trial court properly considered all the circumstances surrounding the extrinsic act – including the similarities, the remoteness in time between the two acts, and the prosecutor's need for the extrinsic act evidence. In this case, the first two prongs were met, but where the State's threshold to prove intent is relatively low (as it likely is in a general intent crime such as DUI), the probative value would necessarily be minimal. In this case, Defendant admitted driving after drinking two beers; there was evidence of a high breath test and speeding, so the probative value on the issue of intent was very low in view of the other evidence. The State's use of the prior DUI was really more geared to showing Defendant's untruthfulness about how much he had to drink (he freely admitted 4 beers the first time; lied and then hedged at two beers on the second time. Also, he claimed an inability to recite the alphabet without signing in the second case, but in the first, he could not recite the whole alphabet despite several attempts. Highlighting Defendant's dishonesty was not the stated purpose for the admission of the evidence, yet this was the way it was being used by the State in argument, creating a potential for the jury to render a decision based on that negative impression along with the stigma of the prior criminal conviction. Therefore, the prejudicial effect did outweigh the probative value, and it was error to admit the similar act. Nonetheless, the error was harmless in view of the overwhelming evidence of guilt in this case, so the conviction stands.

Gibbs v. State, 341 Ga. App. 316, dec. May 4, 2017

Because trial counsel did not object to admission of Gibbs' prior DUI conviction pursuant to O.C.G.A. §24-4-417 (Rule 417), the defendant waived any objection to the admissibility of that evidence. This case was decided before Jones, supra, and left unanswered the question of whether the balancing test (probative vs. prejudicial) of O.C.G.A. §24-4-403 (Rule 403) applies to the admission of extrinsic evidence Rule 417. In Jones, the extrinsic evidence was admitted under O.C.G.A. §24-4-404(b) (Rule 404(b). Rule 417 says the extrinsic act shall be admissible if the predicates are met; Rule 404(b) says the extrinsic act may be admissible for purposes other than proving character to show action in conformity therewith. Opinion by Barnes.

Miller v. State, 2017 Ga. App. LEXIS 467, decided October 18, 2017
Miller appeals from the denial of her motion for new trial following convictions for DUI (alcohol less safe) and following too closely. At trial, the State used her 2006 conviction for DUI to show knowledge, plan, or absence of mistake in refusing the state administered breath test. Miller argued that the age of the prior conviction should not have allowed its use under Rule 403. The appellate court presumed without deciding that Rule 403 does apply to Rule 417 issues. It did not find that there was any presumptive lessening in probity based on age of conviction, although that was a factor for the trial court to consider. In this case, it found that the trial court's decision that the probative value was not substantially outweighed by its prejudicial impact was appropriate, despite the age of the prior DUI conviction.

Sufficiency of the Evidence

Monroe v. State, supra, 340 Ga. App. 373 (2017)

Monroe was stopped for speeding and failure to maintain lane at 3:00 a.m. The officer saw his car drift of the lane line twice. After the stop, the officer smelled an odor of alcohol from inside the vehicle. The stopping officer requested the assistance of another officer who took over the investigation. HGN was 6/6. Monroe declined the WAT and OLS because he had previously been in a car wreck. He refused implied consent testing of his breath. An open container was found in the vehicle, a glass filled with ice and a dark liquid that smelled like an alcoholic beverage. The evidence was sufficient to sustain the conviction.

Danley v. State, supra, 342 Ga. App. 61 (2017)

Danley was a guest in a couple's home where he was drinking shots of whiskey in the early morning hours. He walked up behind the woman and put his hands under her shirt and towards her breasts. It was demanded that he leave, he did not, and the husband physically removed him. In the process, Danley struck the woman in the face. She told him she was calling the police, and he hit her in the face again. Danley then got in his car and left. 911 was called. An officer saw the described vehicle driving away from the location of the fight and stopped the vehicle. He observed Danley to be intoxicated. Another officer arrived and conducted the DUI investigation. He smelled of alcohol and had bloodshot, watery eyes. He admitted consuming alcohol an hour earlier. HGN was 6/6 and he could not balance during WAT. He kept putting his hands in his pockets after being instructed not to. An alcosensor was positive. A later blood test, conducted pursuant to a search warrant, showed a BAC of 0.253. This was sufficient to support the conviction of DUI.

Demonstrative Evidence

Monroe v. State, supra, 340 Ga. App. 373 (2017)

Monroe challenged the trial court's decision to allow the State to use a video clip showing three types of horizontal gaze nystagmus on a different individual. The officer testified that Monroe exhibited the same types of horizontal gaze nystagmus. The trial court has wide discretion to admit demonstrative evidence. Although the conditions of the demonstration need not be identical to the event at issue, they must be so nearly the same in substantial particulars as to afford a fair comparison. No abuse of discretion to admit the video under the circumstances.

6. Preservation of Evidence

Monroe v. State, supra, 340 Ga. App. 373 (2017)

Officers were not required to preserve an open container that had a distinct odor of alcohol unless it is shown that the officers acted in bad faith in failing to preserve it. The burden to show bad faith was on Monroe and there was no such showing.

Sachtjen v. State, 340 Ga. App. 612, dec. March 9, 2017

After being presented with seemingly overwhelming evidence of DUI (.198 breath test, driving down the wrong way of a one-way street; into the wrong way of a parking lot; vomit on the clothing, garbled speech, strong odor of alcohol, failed FSTs), Sachtjen requested jury instructions that the absence of some audio portions of the video recording of the stop and arrest entitled him to a presumption that the missing parts of the recording would have been favorable to the defense. There was no evidence that the State had failed to preserve evidence. There was no explanation for why the camera failed to record some portions of the audio. In the absence of any Georgia law suggesting that a spoliation presumption could apply to criminal proceedings, the trial court did not abuse its discretion in refusing the give the spoliation charge to the jury.

Roadblocks

McCoy v. State, 341 Ga. App. 216, dec. April 11, 2017

The State has the burden of showing that a law enforcement checkpoint is constitutional. Henry County Police Department had roadblock on the southbound exit ramp off I75 at exit 228. The screening officer suspected that McCoy was impaired from smoking marijuana and handed over the investigation to a HEAT officer. The screening officer did not testify at the motion to suppress. The only testimony as to the screening officer's qualifications was that he had been through POST. The trial court found this was sufficient. McCoy argues that if POST certification by itself is sufficient, then the fifth LaFontaine requirement is superfluous and unnecessary. The Court of Appeals embraced the trial court's logic that all POST-certified officers have had training sufficient to allow the officer to make an initial determination as to whether motorists stopped at a checkpoint should be given field tests for intoxication and found that the trial court could take judicial notice of that belief. The Court of Appeals did not go so far as to agree that this finding did render the fifth element of LaFontaine superfluous or unnecessary. Certiorari was granted Oct. 16, 2017. Opinion by Ellington.

Double Jeopardy

Ledford v. State, 341 Ga. App. 222, 799 S.E.2d 359, 2017 Ga. App. LEXIS 169

Ledford argued that the State had goaded her into moving for a mistrial and that retrial should be barred. To be successful, Ledford needed to show that there was governmental conduct intended to goad her into moving for mistrial and that there was intent on the part of the prosecutor to subver the protections afforded by the double jeopardy clause. Spears v. State, 234 Ga. App. 498, 499 (506 SE2d 446 (1998). The trial court had granted a motion to suppress as to the horizontal gaze nystagmus test. A redacted video was prepared by the State. Outside the presence of the jury, it was covered that no references were to be made to HGN. Defense counsel stressed that his client could not afford to try the case twice. Upon direct examination, the officer was questioned about the video and asked if there were any additions, deletions or alterations to the video and responded, “Yes, ma'am, for the HGN.” Ledford's counsel moved for mistrial. The trial court found that the reference to HGN was not intentional on the part of the prosecutor. The court accepted that finding and determined that retrial was not barred.

Implied Consent/Search Warrant Intersection

Hynes v. State, 341 Ga. App. 500, 801 S.E.2d 306, 2017 Ga. App. LEXIS 229, 2017 WL 2361134

Hynes was stopped for weaving. Officer smelled heavy odor of alcohol. Following an initial denial of drinking, driver then admits consumption of two glasses of wine. Only horizontal gaze nystagmus is administered, with 6/6 clues. Hynes is arrested and read implied consent for a blood test. He refused testing, but says that he will do an independent test. The officer obtains a search warrant for blood testing. No effort was made to accommodate an independent test. Hynes moved to suppress the state blood test because there was no accommodation of the request for independent testing. The trial court denied that motion reasoning that a defendant's right to an independent test accrues only upon the defendant consenting to the requested State test. The Court of Appeals found that the right to an independent test is an incentive meant to encourage a driver to submit to the State test and that it does not apply where the driver refuses and a search warrant is obtained instead. Opinion by Self.

Probable Cause

Danley v. State, 342 Ga. App. 61, 2017 Ga. App. LEXIS 306, 802 S.E.2d 851, 2017 WL 2705661

Danley's vehicle was stopped leaving the location of a reported fight. On appeal, he challenged the trial court's denial of his motion for directed verdict based on the lack of probable cause to stop or arrest him. Unfortunately, Danley filed no pre-trial motions. By not filing a motion to suppress, he waived any constitutional challenges to that evidence. However, the court found that the 911 call was sufficient to give the officer authority to stop the vehicle.

Taylor v. State, 2017 Ga. App. LEXIS 416

Not a DUI case, but an interesting decision on probable cause during a traffic stop. Taylor was stopped for failure to maintain lane and a window tint violation. The officer, upon obtaining Taylor's license and registration, observed numerous air fresheners and packages in the car that were releasing an “overwhelming” odor of air freshener. The officer also stated that Taylor's hands were shaking which caused the officer to believe that Taylor was very nervous. The deputy had Taylor exit the vehicle while he wrote written warnings. Conversation during this process pointed out some gaps in Taylor's story. The officer called for backup and then asked Taylor for consent to search. Taylor declined that invitation. The deputy then informed Taylor he would be walking a drug dog around the vehicle. The warnings had not yet been delivered because the deputy was waiting on confirmation on the license and registration. Before the deputy could get the dog out of his vehicle, dispatch radioed the license and registration confirmation. The deputy proceeded with the dog sniff search. The dog alerted. The deputy searched the vehicle and found a significant quantity of marijuana in a large suitcase in the trunk. The dog sniff search would violate Rodriguez v. United States, 135 S.Ct. 1609, 1614, 191 L.Ed.2d 492 (2015) unless the officer had reasonable articulable suspicion that criminal activity was occurring. That requires more than a hunch. The trial court and the Court of Appeals found that the overwhelming smell of air fresheners, the location of the stop along the interstate, and the driver's inconsistent statements would allow the deputy to form a reasonable articulable suspicion and that the traffic stop had properly expanded into a criminal investigation. So, the next time you get your car cleaned, tell the cleaners to take it easy on the air fresheners.

Evidence Issue

Danley v. State, 342 Ga. App. 61, 2017 Ga. App. LEXIS 306, 802 S.E.2d 851, 2017 WL 2705661

Defendant sought to introduce three phone calls between an alleged victim and the 911 center about a report of a fight and the Defendant leaving the scene driving while under the influence. The third phone call was from the 911 center to the alleged victim seeking to confirm which direction the defendant was traveling when he left the scene. The court allowed the first two calls to be played to the jury, but not the third call. This was based on the State's argument that there was no ongoing emergency at that time and that the husband's subsequent death made the recording hearsay. The recording included the husband's statement that the striking of the wife was unintentional. Danley's appeal cited the old evidence code section, which was not appreciated by the court. The court found the exclusion of the recording harmless since it went to the issue of the battery, which charge had been dismissed. It is not clear whether the court considered the import of the sheriff's office's being uncertain of the direction of travel of Danley and how that influenced the propriety of his stop or whether that was argued by the defendant.

Justification Defense

Danley v. State, 342 Ga. App. 61, 2017 Ga. App. LEXIS 306, 802 S.E.2d 851, 2017 WL 2705661

Danley requested a jury charge on the affirmative defense of justification by duress or necessity on the basis that his social hosts “kept bringing him drink after drink.” The trial court advised that he could have such an instruction if he admitted the DUI less safe charge. Danley agreed and then testified as to the coercion issue. No objection was made to the instruction or the court's conditions on giving the instruction. On appeal, Danley argues that the court forced him to admit the elements of DUI. The appellate court rejected this argument.

Ineffective Assistance of Counsel

Danley v. State, 342 Ga. App. 61, 2017 Ga. App. LEXIS 306, 802 S.E.2d 851, 2017 WL 2705661

Trial counsel filed a direct appeal without a motion for new trial and argued on appeal that he had been ineffective at trial. Well-established law requires ineffective assistance of counsel to be raised before appeal if possible or be waived. The Court of Appeals declined to consider the argument on appeal.

Gibbs v. State, 341 Ga. App. 316, 800 S.E.2d 385, 2017 Ga. App. LEXIS 190

Gibbs argues that his trial counsel was ineffective in failing to object to his prior DUI conviction. He was required to show that his lawyer's performance was deficient and that he was prejudiced by that deficient performance. If the evidence was admissible, it would not be deficient to fail to object to it. The court found that the prior conviction would have been properly admitted under Rule 417. Gibbs argued that even if admissible under Rule 417, trial counsel still should have objected under Rule 403 (balancing test). The court presumed but did not decide that Rule 403 was applicable to Rule 417. The court notes that the balancing test should be invoked sparingly and that the balance should be struck in favor of admissibility. The trial court's decision on the issue suggested that it had considered the Rule 417 factors. The court upheld the trial court's decision finding that the evidence would have been admissible even in the face of a proper objection.
Diaz v. State, 2017 Ga. App. LEXIS 432 (September 27, 2017) (A17A1333)

Diaz is a citizen of the Dominican Republic. He was charged with possession of a controlled substance and DUI (alcohol). The case initially proceeded to trial, but Diaz chose to plead guilty during jury selection. The drug charge subjected him to mandatory removal. During the plea colloquy, the prosecutor stated to him that it was his belief that he would be deported. Diaz's counsel stated that either immigration would come for him within 72 hours or they would not. Diaz complained that his counsel's advice was ineffective. Trial counsel's advice may have been deficient performance under Strickland but Diaz was unable to prove prejudice, because he did not establish that in the absence of his counsel's deficient performance that he would not have plead guilty and would have gone to trial. Diaz also needed to show that he was unaware of the immigration risks from any other source.

No Fourth Amendment Right to Refuse Implied Consent Testing

Szopinski v. State, 2017 Ga. App. Lexis 373 (August 9, 2017)(A17A1198)

On appeal, Szopinski asserts that she had a Fourth Amendment right to refuse implied consent testing and evidence of her refusal was improperly admitted at her trial. The right to refuse implied consent testing is not a constitutional right but a statutory right under O.C.G.A. § 40-6-392. The statute allows the refusal to be admitted in evidence. The Court of Appeals found no error.

Prosecution Argument

Szopinski v. State, 2017 Ga. App. Lexis 373 (August 9, 2017)(A17A1198)

The state argued that Szopinski's testimony that she chose to read an old text while she had something in her eye and turning left was incredible. The solicitor further stated that this was the first time she's ever said it to anybody. Szopinski argued that this was a comment on her failure to come forward with evidence in her defense. The court found instead that the prosecutor permissibly explored the inconsistencies between appellant's trial testimony and prior statements.

Field Sobriety

Mitchell v. State, 802 S.E.2d 217, 2017 Ga. LEXIS 545, 2017 WL 2729573

Romberg test is subject to the Harper standard. The significance of eyelid tremors or an individual's internal clock, how they may be affected by the consumption of alcohol, and whether a range of five seconds above or below the actual passage of 30 seconds establishes impairment, are not matters of common sense or experience or obvious to the average lay observer. The trial court erred in failing to conduct a Harper analysis, whether through expert testimony or examination of exhibits, treatisesor th law of other jurisdictions. Opinion by Boggs.

Mitchell also argued that the results of the field sobriety tests should be suppressed for failure to give Miranda warning after the officer told him that he would be arrested if he did not submit to field sobriety tests. Because the Supreme Court did not view that as the equivalent of being placed under arrest, Miranda was not required.

The Supreme Court also rejected Mitchell's argument that field sobriety evaluations are searches and refusal to submit to such evaluations should not be admissible in evidence. In doing so, it disregarded numerous decisions of other state's courts that such evaluations are searches. For that reason, the Court found no prohibition on evidence of the driver refusing field sobriety testing.

The Court also rejected an equal protection and separation of powers challenge to the constitutionality of O.C.G.A. § 24-7-707, governing expert testimony in criminal proceedings.

Spencer v. State, — Ga. —, (October 2, 2017)(S16G1751)(Opinion by Boggs)

Spencer was granted review of the decision of the Georgia Court of Appeals which had upheld the decision of the trial court to allow the law enforcement officer to testify that 4/6 on HGN correlated with 0.08 or greater blood alcohol level. Trial counsel had challenged the evidence on Harper grounds. The Supreme Court found that HGN had reached a state of verifiable certainty in the scientific community and it is admissible as a basis on which an officer can determine that a driver is impaired by alcohol. So, it is viewed as evidence of impairment. The court rejected however that it had reached verifiable certainty as to correlation with any numeric result, particularly one which would constitute per se levels. Relying on the prior decision in Bravo v. State, 304 Ga. App. 243, 696 SE2d 79 (2010), the court observed that it could not make a valid distinction between testimony that sought to estimate a BAC based on earliest angle of onset of HGN and the testimony in this case which stated that HGN indicated a BAC equal to or greater than .08. The officer was the only witness as to the validity of the test. He testified that he had participated in about two weeks of training on HGN and had no medical, physiological or other specialist training. He did refer to some of the studies referenced in the SFST training, but none of those studies were tendered to the court.

State v. Walsh, 339 Ga. App. 894, 795 S.E.2d 202, 2016 Ga. App. LEXIS 694

Walsh challenged the admissibility of the HGN test results based on the officer's failure to properly administer the test. The officer did not have Walsh remove his sunglasses. The officer administered that this was in error and was a substantial deviation from his training. He claimed that he did not see any reflections of light in Walsh's glasses and that they did not impair his ability to read the responses to the test and did not change his interpretation of the test. The Court of Appeals held that the record did not support a finding that the officer did not substantially comply with applicable law enforcement guidelines (despite his admission that it was substantial) and that any deviation went to the weight of the evidence not its admissibility. Opinion by Mercier. Certiorari was granted June 30, 2017.

Speedy Trial

Rogers v. State, 340 Ga. App. 24, 795 S.E.2d 328, 2016 Ga. App. LEXIS 697

Rogers appealed the denial of her motion to discharge based on speedy trial grounds. The trial court found that her statutory speedy trial demand was invalid under O.C.G.A. § 17-7-170. Following the filing of accusations, Rogers filed multiple documents and motions in the state court. She also filed a demand for speedy trial pursuant to O.C.G.A. § 17-7-170. It was clearly titled “DEMAND FOR SPEEDY TRIAL”; it was served by hand delivery to the trial judge, the Solicitor-General's office, and the state court clerk. It was not stapled or otherwise bound to any other document filed that day. It specifically noted the accusation number. It cited O.C.G.A. § 17-7-170. It was filed on February 25, 2016. The case was set for jury trial on May 6, 2016. On that date, defense counsel moved to dismiss based on the failure to try the case within two court terms following the demand. The trial court denied the motion. This appeal followed. The Court found that the trial court erred in denying the motion based on compliance with the pleading requirements. However, it remanded for determination of whether there were jurors impaneled and qualified to try the case within the term of filing and the following term. [Ask Ben Sessions how it shook out]

Ancillary Issues

Habitual Violator

Clinton v. State, 340 Ga. App. 587, 798 S.E.2d 101, 2017 Ga. App. LEXIS 115, 2017 WL 950229

Appeal from bench trial. De novo review of the record. On February 24, 2014, Clifton was stopped for a window tint violation and was then charged with habitual impaired driving, driving without registration and driving without insurance. Clifton stipulated his guilt as to all charges but the habitual violator. He stipulated his prior DUI convictions. Although Clifton had signed a notice of suspension in court on the occasion of his pleading guilty to all three of the underlying DUI charges, that notice did not notify him of his habitual violator status. The DDS had attempted to notify him of that status in October 2012. Clifton produced a letter dated March 2014 from DDS acknowledging that Clifton had not been served notice of the habitual violator revocation. The trial court still convicted him of the habitual violator offense. The Court of Appeals found that the State must show that the driver was notified of his habitual violator revocation. Since that was not present in this case, the conviction was reversed. Opinion by Branch.

Vehicular Homicide; Failure to Give Lesser Offense Instruction

Smith v. State, 2017 Ga. App. LEXIS 403 (September 7, 2017) (A17A1252)

In a first degree vehicular homicide case, the Court of Appeals found that the trial court erred in failing to give a requested instruction on second degree vehicular homicide as a lesser included offense. Because such an instruction must always be given if there is any evidence to show a less culpable traffic offense as the cause of the fatal collision, the conviction was reversed and the case was remanded. The trial court was also instructed to review its prior acts analysis in light of the recent Jones decision.

Vehicular Homicide; Not Failure to Give Lesser Offense Instruction

Turner v. State, 2017 Ga. App. LEXIS 428 (September 26, 2017) (A17A1045)

In this first degree vehicular homicide case, the Court of Appeals found that the lesser included offense of second degree vehicular homicide was not required to be given. It recognized that generally such an instruction must be given but took the position that in this case there was not evidence to support a lesser traffic offense than reckless driving. Turner was indicted for malice murder, felony murder, aggravated assault. She was found guilty of the lesser included offense of first degree homicide by vehicle. There was a two year history of a continuing dispute with the victim including threats toward the victim. This seemed to revolve around the father fo Turner's children. Turner went to the subdivision to confront the victim. She left and returned later with a friend. While there the second time, an argument ensued. The “baby daddy” reached into the car toward Turner and she sprayed him with pepper spray. She drove toward the subdivision exit but then turned around and back toward the victim was standing, bumping the victim with the car. She then turned around and drove at a high rate of speed toward where the victim was, running her over and pinning her beneath the car. She told police that she was in a fit of fury and driving like a bat out of hell. At trial, Turner submitted a written jury charge request for second degree vehicular homicide based on speeding. At the charge conference, Turner requested the lesser included charge based on failure to maintain lane and failure to yield to person in the roadway. The Court of Appeals acknowledged that Turner failed to maintain lane but then since the victim was killed in a driveway, the falure to maintain lane on the roadway did not result in the victim's death. It therefore deemed no error in the failure to give the orally requested charge. Opinion by Barnes.

Officer's Territorial Jurisdiction

Suggs v. State, 2017 Ga. App. LEXIS 448 (decided October 4, 2017)

A Hall County deputy observed a driver commit traffic offenses in Hall County. He then conducted a traffic stop that ended over the county line into Barrow County. He then arrested Suggs for DUI-less safe. The defendant moved to suppress all evidence obtained outside Hall County. The Court of Appeals distinguishes this situation from that in State v. Zilke, 333 Ga. App. 344 (2015) and OCGA 17-4-23(a) because the deputy's authority was not derivd from that statute. Instead, it was found that the deputy had authority under OCGA 40-13-30 which imposes territorial restrictions on municipal officers but not other officers.