THIRD DIVISION DILLARD, C. J., GOBEIL and HODGES, 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
June 25, 2019
In the Court of Appeals of Georgia A19A0244. THE STATE v. CULLER.
GOBEIL, Judge.
In this DUI case, the State appeals from an order of the Bibb County State
Court finding that a law enforcement officer lacked probable cause to arrest Antonio
Mikeal-Austin Culler and granting Culler’s motion to suppress the evidence resulting
from that arrest. The State contends that the trial court erred when, in assessing
probable cause, it: (1) failed to consider the totality of the circumstances; and (2) gave
no weight to the results of a field sobriety test administered to Culler. For reasons
explained more fully below, we vacate the trial court’s ruling and remand for further
proceedings consistent with this opinion.
In a hearing on a motion to suppress, the trial court sits as the trier of fact and
its findings are analogous to a jury verdict. Watts v. State, 334 Ga. App. 770, 771 (780 SE2d 431) (2015). Accordingly, we defer to the trial court’s credibility
determinations and will not disturb its factual findings in the absence of clear error.
Id. And “[w]hen reviewing the grant or denial of a motion to suppress, an appellate
court must construe the evidentiary record in the light most favorable to the trial
court’s factual findings and judgment.” Caffee v. State, 303 Ga. 557, 557 (814 SE2d
386) (2018). Additionally, as a general rule, appellate courts must limit their
“consideration of the disputed facts to those expressly found by the trial court.” Id.
(citation and punctuation omitted). See also Hughes v. State, 296 Ga. 744, 746 (1)
(770 SE2d 636) (2015) (on an appeal from the grant or denial of a motion to suppress,
appellate courts must “focus on the facts found by the trial court in its order”)
(citation, punctuation, and emphasis omitted). “An appellate court may, however,
consider facts that definitively can be ascertained exclusively by reference to
evidence that is uncontradicted and presents no questions of credibility, such as facts
indisputably discernible from a videotape.” Caffee, 303 Ga. at 559 (1) (citation and
punctuation omitted). Finally, although we defer to the trial court’s fact-finding, we
owe no deference to the trial court’s legal conclusions. Hughes, 296 Ga. at 750 (2).
Instead, we independently apply the law to the facts as found by the trial court. Id.
2 Viewed in the light most favorable to the trial court’s judgment, the record
shows that at approximately 2:30 a.m. on November 25, 2017, Officer Thomas Burns
of the Georgia State Patrol observed a Nissan Murano driving in downtown Macon
without its headlights illuminated. Based on the lack of headlights, Burns conducted
a traffic stop of the vehicle, which was driven by Culler. The traffic stop, in turn, led
to Culler’s arrest for DUI. Following his arrest, and after being read Georgia’s
implied consent notice, Culler agreed to provide a breath sample, which was
“positive.”1
Culler was charged by accusation with a single count each of DUI per se,2 DUI
less safe,3 and driving without headlights. Prior to trial, Culler filed a motion to
1 Other than the testimony of the arresting officer that Culler’s breath sample was “positive,” the State provided no evidence concerning the results of that test. The accusation filed against Culler, however, charged him with DUI per se by having a breath alcohol concentration of “.08 grams or more.” 2 See OCGA § 40-6-391 (a) (5) (prohibiting any person from being “in actual physical control of any moving vehicle while . . .[t]he person’s alcohol concentration is 0.08 grams or more at any time within three hours after such driving or being in actual physical control from alcohol consumed before such driving or being in actual physical control ended”). 3 See OCGA § 40-6-391 (a) (1) (prohibiting any person from being “in actual physical control of any moving vehicle while . . . [u]nder the influence of alcohol to the extent that it is less safe for the person to drive”).
3 suppress the results of his breath test, asserting that the officer lacked probable cause
to arrest him and therefore the evidence was obtained illegally. The trial court held
a hearing on the motion to suppress, at which the State presented the testimony of the
arresting officer and the video recording of the traffic stop.4
The video shows that once the officer initiated the traffic stop, Culler
responded by immediately pulling the car off of the roadway and into what appeared
to be an adjacent parking lot, out of the way of traffic. Culler exited the vehicle and
waited for the officer to approach him. Culler provided Burns with his driver’s license
and responded to Burns’s questions. According to Burns, during this exchange, the
officer noticed that Culler’s eyes appeared bloodshot and watery and his speech was
slurred. Burns also detected a “strong odor” of alcohol emanating from Culler’s
person. Based on these observations, Burns asked Culler how much alcohol he had
consumed that evening. Culler initially responded, “not that much,” and then clarified
that he had consumed 2 to 3 mixed drinks over the course of the evening, and that he
had last consumed alcohol approximately 40 minutes earlier. Burns then asked Culler
4 The DVD was not played during the hearing, nor was the arresting officer questioned about the same. Instead, because of time constraints in the court’s schedule, the parties agreed that the DVD would be introduced into evidence at the hearing, and that the trial court would review the DVD independently, following the hearing.
4 if he would be willing to submit to field sobriety tests, and Culler agreed. The officer
performed three field sobriety tests on Culler: the walk-and-turn, the one-leg stand,
and the horizontal gaze nystagmus (“HGN”).
According to Burns, he performed these standardized tests in accordance with
his training.5 Two of the tests (the HGN and the one-leg stand) were performed in
view of the patrol car’s camera and were captured on the video recording of the traffic
stop. Burns explained, however, that because of uneven pavement in front of the
patrol car, he had Culler perform the walk-and-turn test in a different part of the
parking area, out of the camera’s range.6 Burns testified that Culler tested positive on
six out of six clues (three in each eye) on the HGN test and on one clue on the walk-
and-turn test.7 Both Burns’s testimony and the video of the traffic stop show Culler
5 Burns testified that at the time of trial he had been a state patrol officer for 10 years and was POST certified. He had received training in standardized field sobriety testing, as well as training in “drugs and impaired driving.” 6 The audio associated with the walk and turn test was captured on the recording. 7 Although Burns provided no testimony as to how many clues of impaired driving one would look for on the walk-and-turn test, the trial court’s order states that Culler was positive for one out of eight clues on that test. We assume that the court’s statement that there are eight possible clues on the walk-and-turn test is based on the court’s experience. In any event, the State does not challenge this finding on appeal.
5 exhibited no clues on the one-leg stand test. Indeed, the video shows that Culler was
able to stand straight, arms at his side, with one leg raised, and while counting out
loud for approximately 23 seconds, during which time he exhibited no problems with
his balance, coordination, or speech. He ceased performing the test only when Burns
directed him to do so.
After Culler completed the field sobriety tests, Burns used the Alco-Sensor,
which gave a positive reading for the presence of alcohol on Culler’s breath. Burns
then placed Culler under arrest for DUI. Burns testified that he relied on six facts to
find probable cause to arrest Culler. These facts included: the odor of alcohol coming
from Culler’s person; Culler’s bloodshot and watery eyes; Culler’s slurred speech; the
fact that Culler was positive for six out of six clues on the HGN test; the fact that
Culler was positive on one clue on the walk-and-turn test; and the results of the Alco-
Sensor, showing the presence of alcohol on Culler’s breath.
On cross-examination, Burns acknowledged that Culler was cooperative,
communicated clearly, and was easy to understand throughout the traffic stop. Burns
further testified that Culler responded appropriately to all questions and directions
and exhibited no problems with his balance. Additionally, Burns stated that he did not
6 observe Culler driving erratically, and that the traffic stop was based solely on the
lack of headlights, and not on Culler’s operation of the vehicle.
Based on this evidence and its independent review of the video recording of
the traffic stop, the trial court granted the motion to suppress. In doing so the court
acknowledged the six facts on which Burns had relied to find probable cause for
Culler’s arrest, as well as the evidence showing that Culler was operating the car
without headlights and that he had admitted consuming alcohol approximately 40
minutes before driving the car. The trial court found that this evidence provided the
officer with a reasonable basis for believing that Culler was operating the car after
having consumed alcohol, but noted that the relevant question for probable cause
purposes was whether Burns had a reasonable basis for believing that Culler was
impaired.
In conducting its probable cause analysis, the trial court declined to give any
weight to Culler’s failure to turn on his headlights, noting that the video showed that
the streets were well lit, such that the absence of headlights would not have been
readily apparent to a driver. Additionally, the court rejected Burns’s testimony that
Culler was slurring his speech, explaining that the video showed the exact opposite.
Specifically, the court found that the video showed that Culler “spoke very clearly,”
7 “asked appropriate questions to clarify” the officer’s directions to him, and “provided
prompt, clear responses when questioned.” The trial court further found that Culler
exhibited no outward signs of being an impaired driver, observing that Culler
operated the vehicle safely, using “his blinker for both turns shown in the video.” The
court also noted that Culler “stopped promptly when blue[-] lighted and parked in a
safe area off the street. He stepped out of his vehicle immediately. He did not sway
or stumble. He was cooperative and appropriately responsive in all his interactions
with [the officer].”
The trial court also rejected the results of the HGN test, stating that “[t]he video
shows that [the officer] did not perform the HGN test substantially in accordance with
scientific procedures.”8 Thus, the court concluded that the only credible evidence that
Culler was impaired were the presence of alcohol and Culler’s one positive clue on
the walk-and-turn test. And in light of the fact that Culler exhibited no clues on the
one-leg stand test and that he otherwise did not appear to be impaired, the court found
8 In his motion to suppress, Culler did not challenge the HGN test specifically. Rather, he challenged only his arrest. The State, however, does not enumerate as error the trial court’s decision to assess whether the HGN test was administered correctly. Instead, as discussed in Division 2, the State asserts that the trial court’s assessment contains legal and/or factual errors.
8 that the evidence, viewed as a whole, did not support a reasonable probability that
Culler was driving while impaired. The State now appeals from the trial court’s order.
Before addressing the State’s enumerated errors, we note the general legal
principles that apply to the question of whether Burns had probable cause to arrest
Culler for DUI less safe.9 Probable cause for an arrest exists where the objective facts
known to the officer, taken together with the circumstances in which those facts exist,
establish a probability that the suspect is or has been engaged in criminal activity.
Campbell v. State, 313 Ga. App. 436, 438 (721 SE2d 649) (2011). See also Caffee,
303 Ga. at 561 (2) (“[a] probable cause inquiry . . . is a flexible and practical
assessment of probabilities given a particular factual context”) (citation and
punctuation omitted). A probability is “less than a certainty but more than a mere
suspicion or possibility.” Jaffray v. State, 306 Ga. App. 469, 473 (3) (702 SE2d 742)
(2010). The standard is an objective one, meaning that the relevant inquiry is whether
the known facts and circumstances would have led a reasonable officer to conclude
9 Given that police did not perform the breathalyzer test showing that Culler’s blood alcohol concentration was above the legal limit until Culler was in custody, Burns did not have probable cause to suspect Culler was DUI per se at the time he conducted the arrest. See Spencer v. State, 302 Ga. 133, 136 (805 SE2d 886) (2017) (holding that evidence of positive test results on an HGN test, standing alone, is not evidence of DUI per se).
9 that the suspect was engaged in criminal activity. Hughes, 296 Ga. at 749 (2) (because
the standard “is an objective one . . . the subjective thinking of the actual officers in
a particular case is not important”). And in undertaking a probable cause analysis, a
court must consider the facts and circumstances “altogether, for it is the totality of
those facts and circumstances that matters, not any one fact or circumstance standing
alone.” Id. (Citation omitted). See also Campbell, 313 Ga. App. at 438 (“[p]robable
cause need not be defined in relation to any one particular element, but may exist
because of the totality of circumstances surrounding a transaction”) (citation and
punctuation omitted). Furthermore, “where the totality of the facts and circumstances
known to an officer would permit reasonable officers to draw differing conclusions
about whether the suspect probably has committed a crime, probable cause exists, and
it is for the officer – not judges, trial or appellate – to decide which of the several
reasonable conclusions to draw.” Hughes, 296 Ga. at 749 (2).
Bearing the foregoing legal principles and the applicable standard of review
in mind, we turn to the State’s claims of error.
1. Probable cause to arrest an individual for DUI less safe exists where the facts
and circumstances known to the officer would support a reasonable belief that “the
suspect was actually in physical control of a moving vehicle, while under the
10 influence of alcohol to a degree which render[ed] him incapable of driving safely.”
Jaffray, 306 Ga. App. at 473 (3) (citation, punctuation, and footnote omitted;
emphasis supplied). “Mere presence of alcohol is not the issue[,] . . . [and]
[a]ccordingly, the mere fact that a suspect admits to having consumed alcohol before
driving does not provide the probable cause necessary to support an arrest for DUI
[less safe].” Bostic v. State, 332 Ga. App. 604, 607 (774 SE2d 175) (2015) (citations
and punctuation omitted).
According to the State, in finding the evidence did not support the existence
of a reasonable probability that Culler was an impaired driver, the trial court failed
to consider the “totality” of the facts and circumstances. Instead, the State contends,
the trial court committed legal error by assessing each fact or circumstance
individually, and in isolation. The State further contends that the trial court erred by
failing to consider the presence of alcohol on Culler’s breath, Culler’s admission that
he had consumed alcohol, and Culler’s bloodshot and watery eyes in determining the
existence of probable cause. And these failures, the State asserts, led the trial court
to conclude erroneously that no probable cause existed for Culler’s arrest. We
disagree, as these arguments ignore the fact that the trial court chose to assign no
weight to much of the evidence on which Burns relied for probable cause. Nor do the
11 State’s arguments acknowledge the evidence that would support the trial court’s
conclusion – i.e., the evidence that would lead a reasonable person to conclude that
Culler was not impaired.
The trial court’s order reflects that in assessing probable cause, the court
considered all of the facts and circumstances on which Burns claimed he based his
decision to arrest Culler. The trial court also considered that Culler was operating his
vehicle without headlights and admitted to consuming alcohol before driving. The
court then found the evidence as to several of those facts was either not credible or
not reliable. Specifically, the court explicitly rejected Burns’s testimony that Culler
was slurring his speech and implicitly rejected Burns’s testimony concerning Culler’s
bloodshot and watery eyes. See Hughes, 296 Ga. at 747 (1) (appellate courts “must
presume that the absence of a finding of a fact that would tend to undermine the
conclusion of the trial court reflects a considered choice to reject the evidence offered
to prove that fact, especially where there were grounds upon which the trial court
properly could have assigned no weight to such evidence”) (emphasis omitted).
Additionally, the trial court gave no weight to the fact that Culler’s headlights were
not illuminated. Nor did the trial court give any weight to the results of the HGN test,
based on its finding that at least a portion the test was not administered properly. The
12 court’s weighing of the evidence and assessing the credibility of the witnesses is
clearly within the province of the court, as the trier of fact, and therefore did not
constitute legal error. See Tate v. State, 264 Ga. 53, 56 (3) (440 SE2d 646) (1994)
(“[c]redibility of witnesses and the weight to be given their testimony is a decision-
making power that lies solely with the trier of fact”). See also State v. Damato, 302
Ga. App. 181, 183 (1) (690 SE2d 478) (2010) (as the trier of fact on a motion to
suppress, a trial court is free to reject an officer’s testimony, even where that
testimony is uncontradicted).
Based on its determination as to the weight and credibility to be assigned the
evidence, the trial court concluded that the only facts which could have provided
Burns with probable cause for Culler’s arrest were the presence of alcohol, Culler’s
admission that he had consumed alcohol, and Culler’s positive result on one out of
eight clues on the walk-and-turn test. The court then considered these facts in
conjunction with the additional facts known to Burns that would lead a reasonable
person to believe Culler was not impaired. These additional circumstances included
the fact that Culler exhibited no outward signs of impairment, completed the one-leg
stand test with the ease, and was observed driving the car in a safe manner. Finally,
the trial court found that all of these facts, considered as a whole, failed to establish
13 a probability that Culler was driving while impaired. Thus, the record shows that,
despite the State’s assertion to the contrary, the trial court properly considered the
totality of the circumstances in assessing probable cause.
Finally, in light of the facts as found by the trial court, we cannot say that the
trial court erred as a matter of law in concluding that Burns lacked probable cause to
arrest Culler for DUI less safe. See Bostic, 332 Ga. App. at 607 (no probable cause
existed to support an arrest for DUI less safe where, although the defendant admitted
drinking, alcohol was present on his breath, and his eyes were bloodshot and watery,
the traffic stop was not premised on his unsafe operation of the vehicle and the video
of the traffic stop showed that “his gait was steady and otherwise normal”);
Ojemuyiwa v. State, 285 Ga. App. 617, 620 (2) (647 SE2d 598) (2007) (although two
officers detected “a strong odor of alcohol” coming from the defendant’s person, that
fact did not support an arrest for DUI less safe where “there was no evidence
presented whatsoever as to [the defendant’s] manner of driving, that her speech was
slurred, her gait unsteady, or her eyes red and glassy”); Shaheed v. State, 270 Ga.
App. 709, 710 (1) (607 SE2d 897) (2004) (probable cause did not support an arrest
for DUI less safe where the facts showed that the traffic stop was not predicated on
a traffic violation, there was a significant odor of alcohol coming from the driver’s
14 person, and he admitted to drinking and refused to submit to either field sobriety tests
or chemical testing of his blood). As discussed in Division 2, however, we cannot
determine, based on the current record, whether the trial court erred in finding that
none of the results of the HGN test were reliable. On remand, should at least some of
those results be found reliable, that new factual finding would impact the probable
cause analysis.
2. For the results of an HGN test10 to have any evidentiary value, the State must
prove “that the person performing the test substantially performed the [same] in an
acceptable manner” – i.e., in such a manner that the results are reliable. Walsh v.
State, 303 Ga. 276, 280 (811 SE2d 353) (2018). The trial court found the results of
the HGN test performed on Culler “to be unreliable” because the video showed that
Burns did not perform a portion of the test within the applicable guidelines. The court
stated: “Specifically, in relation to the ‘lack of smooth pursuit’ portion of the test,
10 As its name suggests, the HGN test is designed to detect a nystagmus, which “is an involuntary jerking of the eye [that] can occur as a result of impairment by depressants (including alcohol), inhalants, or dissociative anesthetics.” Walsh v. State, 303 Ga. 276, 277 (811 SE2d 353) (2018). The HGN test apparently includes three “evaluative components,” one of which is called “smooth pursuit.” See Parker v. State, 307 Ga. App. 61, 64 (2) (704 SE2d 438) (2010). A person who exhibits positive clues on all three of these evaluative components in both eyes tests positive for six out of six clues of impairment. Id.
15 Trooper Burns performed the passes significantly more quickly than the required two
seconds out and two seconds back, which may induce nystagmus.”
On appeal, the State challenges the trial court’s findings that the smooth pursuit
component of the HGN test was not administered according to the applicable
guidelines and that this failure could produce a false positive result. It also challenges
the trial court’s refusal to give any weight to those portions of the test that were
performed correctly.11
(a) The State argues that no evidence supported the trial court’s finding that the
relevant guidelines require that an officer perform the passes involved in the lack of
smooth pursuit portion of the HGN test at a pace of “two seconds in and two seconds
out.” We agree with the State that the record contains no testimony or other evidence
regarding the proper administration of an HGN test. With respect to this issue,
however, the State concedes in its brief that the relevant guidelines for the smooth
pursuit component require an officer “to move the stimulus ‘steadily at a speed that
11 In its brief, the State refers to the trial court’s “exclusion” or “suppression” of the HGN test results. And both parties cite cases dealing with the admission or exclusion of the results of such a test at the trial of a defendant’s DUI case. The trial court, however, neither suppressed nor excluded Culler’s HGN evaluation. Instead, it suppressed the evidence resulting from Culler’s arrest – i.e., Culler’s breath test. In reaching the conclusion that no probable cause supported the arrest, the court declined to give any weight to the HGN evaluation.
16 takes approximately two seconds to bring the eye from the center to the side.’” Thus,
it appears that the trial court and the State are in agreement about the guidelines
governing the time element of the smooth pursuit component.12 Unfortunately, given
the lack of testimony concerning HGN tests and their proper administration, we
cannot readily determine from the video recording whether Burns complied with the
guidelines at issue. Put another way, this is not a question of fact that is “indisputably
discernible from” the video recording. Caffee, 303 Ga. at 559 (1).
The State also asserts that no evidence of record supports the trial court’s
finding that taking less than two seconds to perform the smooth pursuit component
could induce nystagmus. We agree that there was no testimony on this issue. We note,
however, that it is “the responsibility of the trier of fact . . . to draw reasonable
inferences” from the facts. Kiser v. State, 327 Ga. App. 17, 18 (755 SE2d 505) (2014)
Accordingly, in an appeal from an order granting or denying a motion to suppress,
“the standard of review require[s] [an appellate court] to defer to” any such inferences
the trial court draws. Mayberry v. State, 312 Ga. App. 510, 512 (718 SE2d 822)
12 Notably, the State does not contend that the video shows that Burns performed the test within the applicable guidelines – i.e., it does not contend that the video shows that it took Burns approximately two seconds to move the stimulus from the center to the side.
17 (2011). And here, the trial court’s finding on the issue of a possible false positive
result is a logical inference to draw from the undisputed fact that guidelines exist for
administering the HGN test. Those guidelines exist for a reason, and as a matter of
logic, at least part of that reason would be to ensure the reliability of the test results.
Again, however, the lack of testimony about the specifics of the HGN test and
the proper technique for performing the same prevents us from determining whether
the trial court properly inferred that a failure to administer the test in accordance with
the prescribed guidelines could trigger a false positive result. Given this fact, and
given that we cannot discern from the record whether Burns administered the test
properly, we vacate the trial court’s order and remand for further proceedings on
these questions. See Williams v. State, 301 Ga. 60, 62 (799 SE2d 779) (2017)
(vacating an order granting a motion to suppress and remanding to the trial court “for
further clarification on the specific findings that form the basis for its legal
conclusions”); Stroud v. State, 344 Ga. App. 827, 834 (3) (812 SE2d 309) (2018)
(reversing denial of motion to suppress and remanding for determination of factual
questions necessary to decide that motion).
(b) The State further contends that even assuming that Burns failed to
administer the smooth pursuit component of the test within the scientific guidelines,
18 the trial court erred in concluding that the positive results on the other two evaluative
components were unreliable. To support this argument, the State cites to the fact that
an officer can conclude that a suspect is impaired if the suspect has a positive result
on four out of the six clues tested for on the HGN. See Parker v. State, 307 Ga. App.
61, 64 (2) (704 SE2d 438) (2010). (“[u]nder law enforcement guidelines, a score of
four out of six clues on an HGN test constitutes evidence of impairment”). Thus, the
State argues that even assuming one portion of Culler’s HGN test was tainted, the
trial court erred in refusing to give any weight to the remaining four positive results.
Given the current record, however, we cannot determine whether the trial court erred
in finding that no part of the HGN test was reliable. It could be that the trial court
concluded that, based on Culler’s appearance, demeanor, and conduct as shown on
the video recording, none of Burns’s testimony on this issue was credible.13
13 Logically, such a finding would mean that the trial court did not believe Burns’s testimony regarding the positive result on the remaining four clues. The trial court is, of course, entitled to make such a credibility finding. “[T]he trier of fact is not obligated to believe a witness even if the testimony is uncontradicted and may accept or reject any portion of the testimony . . . Factors such as demeanor, contradictory or inconsistent statements[,] and evidence that an officer had ‘ulterior motives’ can all lead a finder of fact to disregard testimony by an officer.” Walsh, 303 Ga. at 282 (citation and punctuation omitted). Here, however, the trial court did not make such a finding expressly, and we hesitate to infer such a significant credibility determination from the court’s order.
19 Alternatively, it could be that the trial court found that any induced nystagmus on the
smooth pursuit portion of the test rendered the entire test unreliable, especially if that
portion of the test was performed first. Because it is unclear as to how the trial court
arrived at its finding of unreliability, we vacate the trial court’s order and remand for
further proceedings on this issue. Williams, 301 Ga. at 62; Stroud, 344 Ga. App. at
834 (3).
For the reasons set forth above, we vacate the trial court’s order granting the
motion to suppress and remand for further proceedings, including a hearing on the
questions of: (1) whether Burns performed the HGN test properly; (2) whether failure
to perform the test within the applicable guidelines could trigger a false positive
result; and (3) whether, if one portion of the HGN test was performed incorrectly, that
fact renders the entire test unreliable. Any new order entered by the trial court should
address these issues, as well as any credibility determinations affecting the court’s
decision to accept or reject the results of any field sobriety tests.
Judgment vacated and case remanded with direction. Dillard, C. J., and
Hodges, J., concur.