FOURTH DIVISION DOYLE, P. J., MCFADDEN and BOGGS, JJ.
NOTICE: Motions for reconsideration must be physically received in our clerk’s office within ten days of the date of decision to be deemed timely filed. http://www.gaappeals.us/rules/
September 26, 2013
In the Court of Appeals of Georgia A13A1067. LEE v. THE STATE.
MCFADDEN, Judge.
Seung Lee appeals from his conviction of driving under the influence of
alcohol (DUI), challenging the trial court’s denial of his motion in limine to exclude
the results of a state-administered breath test. Because Lee did not withdraw his
implied consent to submit to such testing, the trial court did not err in denying the
motion.
On June 17, 2011, a police sergeant saw Lee driving his motor vehicle on the
wrong side of the road. The sergeant stopped the vehicle, approached Lee, smelled
a strong odor of alcohol on his breath, and saw that his eyes were bloodshot and
glazed. Another officer was called to the scene, and he too smelled the alcohol on
Lee’s breath and noticed his bloodshot and glazed eyes. Lee told the officer that he had drunk one beer and agreed to perform field sobriety evaluations. After failing a
horizontal gaze nystagmus evaluation, Lee refused to submit to a field alco-sensor
evaluation and asked for a blood test. The officer arrested Lee for DUI, read to him
the applicable implied consent notice and requested that he submit to a breath test.
Lee, who speaks English as a second language, indicated that he did not understand
the notice. The officer transported Lee to the jail, where he instructed Lee on how to
provide a proper breath sample. Lee performed the breath test as instructed, the
results of which showed a blood-alcohol concentration of 0.118 and 0.125 grams. The
officer then asked Lee if he still wanted the blood test, and he replied that he did not
want a blood test and would accept the results of the breath test.
Lee was charged by accusation with DUI and driving on the wrong side of the
road. He filed a motion in limine to exclude the results of the breath test, which the
trial court denied. Lee subsequently agreed to a stipulated bench trial, after which he
was convicted of DUI to the extent he was a less safe driver and driving on the wrong
side of the road. This appeal followed.
1. Implied consent.
The implied consent statute, OCGA § 40-5-55 (a), provides that any person
who operates a motor vehicle in this state and is arrested for DUI is deemed to have
2 given consent to chemical tests of his bodily substances to determine the presence of
alcohol or drugs. That consent may be withdrawn. OCGA § 40-5-67.1 (b) requires
arresting officers to read the appropriate informed consent notice to the arrested
person, informing him, among other things, that he has a right to independent tests
after submitting to state testing and that his refusal to submit to state testing may be
offered into evidence against him at trial. We have construed § 40-5-67.1 (b) to
authorize arrested persons to withdraw their implied consent by refusing to submit to
testing. State v. Stewart, 286 Ga. App. 542, 544 (1) (649 SE2d 525) (2007);
Hernandez v. State, 238 Ga. App. 796, 798 (2) (520 SE2d 698) (1999).
Inability to consent, however, is not withdrawal of consent. “OCGA § 40-5-55
(b) provides that any person who is ‘dead, unconscious, or otherwise in a condition
rendering such person incapable of refusal’ to submit to testing shall be deemed not
to have withdrawn his implied consent, thereby allowing the test or tests to be
administered.” Hernandez, supra (emphasis supplied).
In this case, Lee contends that the trial court has misapplied “OCGA § 40-5-55
(b). It is settled law that “a non-English-speaking driver is not “in a condition
rendering such person incapable of refusal” for the purposes of OCGA §
40-5-55(b).”Furcal-Peguero v. State, 255 Ga. App. 729, 733, n. 7, 566 S.E.2d 320,
3 325 (2002) (emphasis in the original). Lee contends that the trial court disregarded
that settled law and admitted the breath test results solely on the basis of an erroneous
finding that, pursuant to OCGA § 40-5-55 (b), Lee’s inability to understand the
implied consent notice due to a language barrier rendered him incapable of refusal to
take the test. But there is nothing in the trial court’s order denying the motion in
limine to indicate that the court based its ruling on such a misapplication of OCGA
§ 40-5-55 (b).
Rather, the order indicates that the court based its ruling on “applicable and
controlling law.” While the order does not contain citations of legal authority, the trial
court cited to the applicable and controlling law at the motions hearing. The trial
court pointed out to the parties, and invited them to submit briefs on, a line of cases
holding that the arresting officer is not required to ensure that the driver understands
the implied consent notice. Those cases hold that
drivers are entitled only to be advised of their rights under the implied consent law, that is, to have the implied consent notice read to them. The law does not require the arresting officer to ensure that the driver understands the implied consent notice. . . . Furcal-Peguero[ v. State, 255 Ga. App. 729,] 732-733 [(566 SE2d 320) (2002)]. See also [State v.] Webb, [212 Ga. App. 872,] 873 [(443 SE2d 630) (1994)] (“In all cases the court is required to find only that the implied consent law was conveyed to the driver. The
4 State is under no duty to prove that the driver fully understood his rights under that law.”) . . . ; Rodriguez v. State, 275 Ga. 283, 285-286 (2) (565 SE2d 458) (2002) (no requirement that the implied consent notice be read in any language other than English, even where the driver speaks no English). The rationale underlying this rule is obvious: to hold otherwise, and allow an intoxicated driver’s professed inability to understand the implied consent warning to vitiate either the implied consent or the revocation of it, would so undermine OCGA § 40-5-55 (a) as to render it meaningless. Indeed, such a holding would actually benefit most those drivers who pose the greatest threat on the road - i.e., those who are so impaired that, even though conscious, are unable to comprehend their circumstances.
State v. Stewart, supra at 545 (2) (punctuation and emphasis omitted). As the Georgia
Supreme court has held, “[i]mplied consent warnings . . . are a matter of legislative
grace, and due process does not require that the warnings be given in a language that
the driver understands.” Rodriguez, supra at 287-288 (3) (citations omitted).
Moreover, we note that in so holding, that line of cases has expressly affirmed that
“a non-English speaking driver is not ‘in a condition rendering such person incapable
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FOURTH DIVISION DOYLE, P. J., MCFADDEN and BOGGS, JJ.
NOTICE: Motions for reconsideration must be physically received in our clerk’s office within ten days of the date of decision to be deemed timely filed. http://www.gaappeals.us/rules/
September 26, 2013
In the Court of Appeals of Georgia A13A1067. LEE v. THE STATE.
MCFADDEN, Judge.
Seung Lee appeals from his conviction of driving under the influence of
alcohol (DUI), challenging the trial court’s denial of his motion in limine to exclude
the results of a state-administered breath test. Because Lee did not withdraw his
implied consent to submit to such testing, the trial court did not err in denying the
motion.
On June 17, 2011, a police sergeant saw Lee driving his motor vehicle on the
wrong side of the road. The sergeant stopped the vehicle, approached Lee, smelled
a strong odor of alcohol on his breath, and saw that his eyes were bloodshot and
glazed. Another officer was called to the scene, and he too smelled the alcohol on
Lee’s breath and noticed his bloodshot and glazed eyes. Lee told the officer that he had drunk one beer and agreed to perform field sobriety evaluations. After failing a
horizontal gaze nystagmus evaluation, Lee refused to submit to a field alco-sensor
evaluation and asked for a blood test. The officer arrested Lee for DUI, read to him
the applicable implied consent notice and requested that he submit to a breath test.
Lee, who speaks English as a second language, indicated that he did not understand
the notice. The officer transported Lee to the jail, where he instructed Lee on how to
provide a proper breath sample. Lee performed the breath test as instructed, the
results of which showed a blood-alcohol concentration of 0.118 and 0.125 grams. The
officer then asked Lee if he still wanted the blood test, and he replied that he did not
want a blood test and would accept the results of the breath test.
Lee was charged by accusation with DUI and driving on the wrong side of the
road. He filed a motion in limine to exclude the results of the breath test, which the
trial court denied. Lee subsequently agreed to a stipulated bench trial, after which he
was convicted of DUI to the extent he was a less safe driver and driving on the wrong
side of the road. This appeal followed.
1. Implied consent.
The implied consent statute, OCGA § 40-5-55 (a), provides that any person
who operates a motor vehicle in this state and is arrested for DUI is deemed to have
2 given consent to chemical tests of his bodily substances to determine the presence of
alcohol or drugs. That consent may be withdrawn. OCGA § 40-5-67.1 (b) requires
arresting officers to read the appropriate informed consent notice to the arrested
person, informing him, among other things, that he has a right to independent tests
after submitting to state testing and that his refusal to submit to state testing may be
offered into evidence against him at trial. We have construed § 40-5-67.1 (b) to
authorize arrested persons to withdraw their implied consent by refusing to submit to
testing. State v. Stewart, 286 Ga. App. 542, 544 (1) (649 SE2d 525) (2007);
Hernandez v. State, 238 Ga. App. 796, 798 (2) (520 SE2d 698) (1999).
Inability to consent, however, is not withdrawal of consent. “OCGA § 40-5-55
(b) provides that any person who is ‘dead, unconscious, or otherwise in a condition
rendering such person incapable of refusal’ to submit to testing shall be deemed not
to have withdrawn his implied consent, thereby allowing the test or tests to be
administered.” Hernandez, supra (emphasis supplied).
In this case, Lee contends that the trial court has misapplied “OCGA § 40-5-55
(b). It is settled law that “a non-English-speaking driver is not “in a condition
rendering such person incapable of refusal” for the purposes of OCGA §
40-5-55(b).”Furcal-Peguero v. State, 255 Ga. App. 729, 733, n. 7, 566 S.E.2d 320,
3 325 (2002) (emphasis in the original). Lee contends that the trial court disregarded
that settled law and admitted the breath test results solely on the basis of an erroneous
finding that, pursuant to OCGA § 40-5-55 (b), Lee’s inability to understand the
implied consent notice due to a language barrier rendered him incapable of refusal to
take the test. But there is nothing in the trial court’s order denying the motion in
limine to indicate that the court based its ruling on such a misapplication of OCGA
§ 40-5-55 (b).
Rather, the order indicates that the court based its ruling on “applicable and
controlling law.” While the order does not contain citations of legal authority, the trial
court cited to the applicable and controlling law at the motions hearing. The trial
court pointed out to the parties, and invited them to submit briefs on, a line of cases
holding that the arresting officer is not required to ensure that the driver understands
the implied consent notice. Those cases hold that
drivers are entitled only to be advised of their rights under the implied consent law, that is, to have the implied consent notice read to them. The law does not require the arresting officer to ensure that the driver understands the implied consent notice. . . . Furcal-Peguero[ v. State, 255 Ga. App. 729,] 732-733 [(566 SE2d 320) (2002)]. See also [State v.] Webb, [212 Ga. App. 872,] 873 [(443 SE2d 630) (1994)] (“In all cases the court is required to find only that the implied consent law was conveyed to the driver. The
4 State is under no duty to prove that the driver fully understood his rights under that law.”) . . . ; Rodriguez v. State, 275 Ga. 283, 285-286 (2) (565 SE2d 458) (2002) (no requirement that the implied consent notice be read in any language other than English, even where the driver speaks no English). The rationale underlying this rule is obvious: to hold otherwise, and allow an intoxicated driver’s professed inability to understand the implied consent warning to vitiate either the implied consent or the revocation of it, would so undermine OCGA § 40-5-55 (a) as to render it meaningless. Indeed, such a holding would actually benefit most those drivers who pose the greatest threat on the road - i.e., those who are so impaired that, even though conscious, are unable to comprehend their circumstances.
State v. Stewart, supra at 545 (2) (punctuation and emphasis omitted). As the Georgia
Supreme court has held, “[i]mplied consent warnings . . . are a matter of legislative
grace, and due process does not require that the warnings be given in a language that
the driver understands.” Rodriguez, supra at 287-288 (3) (citations omitted).
Moreover, we note that in so holding, that line of cases has expressly affirmed that
“a non-English speaking driver is not ‘in a condition rendering such person incapable
of refusal’ for purposes of OCGA § 40-5-55 (b).” Furcal-Peguero, supra at 733, n.
7.
The trial court’s decision is sustainable under that controlling line of authority.
Absent any showing to the contrary, we presume that the trial court based its ruling
5 on the controlling authority and not on an erroneous legal theory. See generally Davis
v. Bushnell, 245 Ga. App. 221, 223 (537 SE2d 477) (2000) (in the absence of a
contrary showing, the trial court is presumed to have followed the law). Under that
authority, “[t]he result[s] of the [s]tate-administered test[s were] admissible in this
case because [Lee] consented to [the] tests by driving on Georgia’s roads, because the
officer properly advised [him] of his implied consent rights, and because [Lee] did
not withdraw his consent. [Cits.] The trial court [therefore] did not err in admitting
the result[s] of the [s]tate-administered breath test.” Furcal-Peguero, supra at 733.
2. Equal protection claim.
Lee further argues that requiring a DUI suspect who speaks limited English to
affirmatively withdraw his implied consent to the state-administered breath test
violates his constitutional right to equal protection. “Because [Lee] failed to raise this
or any other constitutional objection at trial, he has waived all such objections on
appeal.” Breazeale v. State, 290 Ga. App. 632, 637 (10) (660 SE2d 376) (2008)
(citation and punctuation omitted).
Judgment affirmed. Doyle, P. J., and Boggs, J., concur.