State v. Armida Marisol Lobo Hernandez

• Court: Court of Appeals of Georgia
• Decided: June 18, 2025
• Docket: A25A0558
• Status: Published

Opinion

FIFTH DIVISION MCFADDEN, P. J., HODGES and PIPKIN, 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. https://www.gaappeals.us/rules

June 18, 2025

In the Court of Appeals of Georgia A25A0558. THE STATE v. HERNANDEZ.

MCFADDEN, Presiding Judge.

The state appeals from the portion of a trial court order granting Armida

Hernandez’s motion to suppress her blood test results on the basis that, due to a

language barrier, she did not understand the implied consent warning read to her by

an arresting officer.1 But the officer did not obtain Hernandez’s blood for testing

pursuant to her purported consent, and instead obtained it pursuant to a search

1 We note that in her appellee’s brief, Hernandez has improperly attempted to raise her own claims of error as to the trial court’s order. See Court of Appeals Rule 25 (b) (appellee’s brief does not include enumeration of errors). While she could have raised such claims in a proper cross-appeal, she failed to file a cross-appeal or otherwise follow the mandatory rules of practice and procedure for such an appeal. See OCGA § 5-7-1 (b). So those issues will not be addressed in this appeal by the state challenging an order “excluding the results of any test for alcohol or drugs[.]” OCGA § 5-7-1 (a) (4). warrant issued by a magistrate. So we reverse the portion of the trial court’s order

suppressing the blood test results based on Hernandez’s lack of understanding of the

implied consent warning. We make no determination as to the validity of the warrant

and its execution because those issues were not ruled upon by the trial court.

1. Facts and procedural posture

Hernandez was charged by accusation with driving under the influence of

alcohol (“DUI”), driving without a valid license, speeding, and failing to maintain a

lane. She filed a motion to suppress evidence arising from the traffic stop that had led

to the charges. After an evidentiary hearing, the trial court made the following findings

of fact in its suppression order.

Hernandez was stopped by police for speeding and failing to maintain a lane.

Officers at the scene noted that Hernandez did not speak English. An interpreter was

unavailable, so an officer attempted to communicate with Hernandez by using a

translation application on his personal cell phone. The officer observed that

Hernandez had an odor of alcohol on her breath and watery, bloodshot eyes. Using the

translator on his phone, the officer had Hernandez perform field sobriety tests and

blow into a portable breath test, after which he arrested her for DUI. The officer then

2 read the Georgia implied consent notice to Hernandez in English without using the

translator. Hernandez did not give consent to a chemical test and she was transported

to a police precinct. The officer then applied for a search warrant for Hernandez’s

blood, the warrant was issued, and her blood was drawn pursuant to the warrant.

The court then denied Hernandez’s motion to suppress in part and granted it

in part. The court refused to suppress officer body camera footage and Hernandez’s

pre-custodial statements. But the court ordered suppression of a field sobriety

exercise, the portable breath test administered at the scene, and Hernandez’s

subsequent blood test results. In suppressing the blood test results, the court cited

State v. Ortiz, 363 Ga. App. 829 (873 SE2d 217) (2022), to support its finding that

Hernandez did not voluntarily withhold consent to submit to the test because she did

not understand the implied consent notice read in English. This appeal by the state,

challenging only the suppression of the blood test results, followed.

2. Suppression of blood test

The state asserts that the trial court erred in relying on Ortiz, supra, to suppress

Hernandez’s blood test results. We agree.

3 In Ortiz, despite a language barrier between a DUI suspect and an officer, the

officer relied on the suspect’s purported consent to obtain a state-administered breath

test. Ortiz, supra at 831-832. The trial court suppressed the breath test results, and we

affirmed that ruling, because the suspect “lacked the capacity to provide actual

consent based on the language barrier.” Id. at 835 (1).

Pretermitting any language barrier in the instant case, the facts here are

materially different from Ortiz because, as noted above, the officer did not administer

the blood test to Hernandez based on her purported consent. Instead, due to the lack

of consent, the officer applied for and obtained a search warrant to seize Hernandez’s

blood for testing. See Massey v. State, 331 Ga. App. 430, 433 (1) (771 SE2d 122) (2015)

(officer properly sought and obtained a search warrant to forcibly take blood from DUI

suspect); McAllister v. State, 325 Ga. App. 583, 585-586 (1) (754 SE2d 376) (2014)

(same). Accordingly, the trial court’s reliance on Ortiz to suppress the blood test

results obtained pursuant to a search warrant was erroneous and that part of the

court’s suppression order must be reversed.

The state further argues that the search warrant was valid and lawfully

executed, so the blood test results may not be suppressed. See OCGA § 17-5-30 (a) (2)

4 (evidence seized pursuant to a warrant may be suppressed if the warrant was

insufficient on its face, was not supported by probable cause, or was illegally

executed). But the trial court has not ruled on those issues since Hernandez did not

challenge the search warrant in her motion to suppress, and we will not decide them

for the first time on appeal. See Coleman v. State, 337 Ga. App. 732, 738 (3) (788 SE2d

826) (2016) (issues that were not ruled on in the trial court cannot be raised for the

first time on appeal). See also State v. Haynes, 373 Ga. App. 154, 155 (1) (907 SE2d

222) (2024) (if a search warrant is challenged, the trial court provides a first level of

review).

Judgment reversed in part. Hodges and Pipkin, JJ., concur.