State v. Barnard

740 S.E.2d 837, 321 Ga. App. 20, 2013 Fulton County D. Rep. 1172, 2013 WL 1245336, 2013 Ga. App. LEXIS 308
CourtCourt of Appeals of Georgia
DecidedMarch 28, 2013
DocketA12A2445
StatusPublished
Cited by10 cases

This text of 740 S.E.2d 837 (State v. Barnard) is published on Counsel Stack Legal Research, covering Court of Appeals of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Barnard, 740 S.E.2d 837, 321 Ga. App. 20, 2013 Fulton County D. Rep. 1172, 2013 WL 1245336, 2013 Ga. App. LEXIS 308 (Ga. Ct. App. 2013).

Opinion

Phipps, Presiding Judge.

The state appeals from a trial court order granting Lachelle Barnard’s motion in limine to exclude the results of an Intoxilyzer 5000 breath test obtained at the time of her arrest for making an improper u-turn1 and driving under the influence.2 The state contends that the trial court erred in excluding the Intoxilyzer test results on the basis of its finding that the arresting officer had informed Barnard that her out-of-state license would be suspended if she did not submit to the state-administered breath test, and its finding that the officer did not read the correct implied consent notice to Barnard. Because we find no substantial basis for the trial court’s ruling, we reverse.

Where the evidence at a hearing on a motion in limine is uncontroverted, and no issue exists regarding the credibility of witnesses, we review the trial court’s ruling to ensure that there was a substantial basis for it. The trial court’s application of the law to the undisputed facts is subject to de novo review.3

At the hearing on Barnard’s motion in limine, the arresting officer testified that on November 11, 2010, he observed Barnard’s vehicle make a u-turn at an intersection where a posted sign prohibited such a turn. The officer conducted a traffic stop. He smelled a strong odor of alcohol coming from the vehicle. Barnard told the [21]*21officer that she had drunk an alcoholic beverage at the restaurant she had just left. The officer observed that Barnard’s speech was slurred and her eyes were bloodshot. He asked Barnard to exit her vehicle, and Barnard did so. The officer observed that Barnard was unsteady on her feet, and he smelled a strong odor of alcohol coming from her breath. When he asked for her driver’s license, Barnard produced a North Carolina driver’s license.

Barnard performed a field sobriety test, and the officer noted two clues of impairment. Barnard blew into an alco-sensor device, which gave a positive result. The officer arrested Barnard for driving under the influence. Concerning what transpired next, the following colloquy occurred on direct examination:

Q. Did you read her her Georgia implied consent warning?
A. I did.
Q. And which section did you read?
A. Georgia Implied Consent Notice For Suspects Age 21 And Over.
Q. How were you able to determine her age?
A. From her license.
Q. Officer, I just handed you what we’ve marked State’s 1 for the Court. Would you identify that?
A. Yes. It’s a beat up copy of my Intox card I keep in my shirt.
Q. Is it an accurate copy of your Georgia implied consent card?
A. It is.
Q. And is that the warning that was in effect at the time of this arrest?
A. It is.
Q. Did you read it verbatim to the Defendant?
A. I did.

A copy of the officer’s implied consent card was admitted in evidence. The card pertinently stated:

IMPLIED CONSENT NOTICE/SUSPECTS AGE 21 OR OVER
Georgia law requires you to submit to state administered chemical tests of your blood, breath, urine, or other bodily substances for the purpose of determining if you are under the influence of alcohol or drugs. If you refuse this testing, your Georgia driver’s license or privilege to drive on the highways of this state will be suspended for a minimum [22]*22period of one year. Your refusal to submit to the required testing may be offered into evidence against you at trial. If you submit to testing and the results indicate an alcohol concentration of 0.08 grams or more, your Georgia driver’s license or privilege to drive on the highways of this state may be suspended for a minimum period of one year. After first submitting to the required state tests, you are entitled to additional chemical tests of your blood, breath, urine, or other bodily substances at your own expense and from qualified personnel of your own choosing. Will you submit to the state administered chemical tests of your (<designate which test) under the Implied Consent Law?4

The officer testified that he had asked Barnard to submit to a breath test, and that Barnard consented and submitted to the test.

On cross-examination, the officer testified, “I read her implied consent outside the car.... As soon as I put her in handcuffs, told her she was under arrest and I read her implied consent.” Concerning what the officer told Barnard about her license being suspended, the following colloquy occurred:

Q. Do you recall telling her that her driver’s license would be suspended if she refused the test?
A. No. I read her implied consent. It says it in implied consent.
Q. So you don’t recall any conversation after that?
A. No. It says: Your driver’s license will be suspended for a minimum period of one year if you refuse this testing.
Q. Okay. So you told her her driver’s license would be suspended for a period of one year?
A. It’s in the implied consent, when I read it to her. Yes, sir.

The trial court excluded the results of the breath test, finding, pertinently:

Officer [name] informed [Barnard] that her license would be suspended if she did not submit to the state administered breath test. This Court finds that Officer [name] read the implied consent warning card for drivers licensed by the State of Georgia. However, Defendant Barnard had a North Carolina driver’s license and as a result the officer did not read the correct warnings to [Barnard]. Therefore, [Barnard’s]
[23]*23Motion to Suppress the intoxilyzer results is hereby GRANTED.

Barnard submitted to the testing, which showed that she had a blood alcohol concentration level of 0.133. Barnard did not testify at the hearing.

1. The state contends that the trial court erred in excluding the Intoxilyzer test results based on the court’s finding that the arresting officer had informed Barnard that her license would be suspended if she did not submit to the state-administered breath test. We agree with the state.

The determinative issue with the implied consent notice is whether the notice given was substantively accurate so as to permit the driver to make an informed decision about whether to consent to testing. Even when the officer properly gives the implied consent notice, if the officer gives additional, deceptively misleading information that impairs a defendant’s ability to make an informed decision about whether to submit to testing, the defendant’s test results or evidence of his refusal to submit to testing must be suppressed. The suppression of evidence, however, is an extreme sanction and one not favored in the law.5

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Cite This Page — Counsel Stack

Bluebook (online)
740 S.E.2d 837, 321 Ga. App. 20, 2013 Fulton County D. Rep. 1172, 2013 WL 1245336, 2013 Ga. App. LEXIS 308, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-barnard-gactapp-2013.