FIRST DIVISION BARNES, P. J., GOBEIL 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
DEADLINES ARE NO LONGER TOLLED IN THIS COURT. ALL FILINGS MUST BE SUBMITTED WITHIN THE TIMES SET BY OUR COURT RULES.
August 25, 2020
In the Court of Appeals of Georgia A20A1293. THE STATE v. HENDERSON.
PIPKIN, Judge.
Brandon Doyle Henderson was charged with driving under the influence, and
he filed a motion in limine to exclude the results of his breath test. The trial court
found that Henderson had been misled into consenting to a breath test and granted the
motion. The State appeals. Because we find that the trial court failed to properly
apply the “totality of the circumstances” inquiry, we vacate and remand.
In reviewing a trial court’s ruling on a motion to suppress, we defer to a trial
court’s factual findings. State v. Council, 348 Ga. App. 497, 497 (823 SE2d 817)
(2019). But where there are no disputed issues of fact or credibility issues, we review
the trial court’s application of the law de novo. Id. at 500. So viewed, the record evidence shows that on June 16, 2018, Henderson
backed his vehicle into another car parked in a bar’s parking lot. A sheriff’s deputy
on duty in the parking lot saw the collision and followed Henderson, who had exited
his car and gotten in line to enter the bar. The deputy asked Henderson to step out of
the line to talk to him, and Henderson complied. According to the deputy, Henderson
was unsteady on his feet, smelled of alcohol, and was slurring his words. Henderson
admitted to the deputy that he had “had a couple of beers” and that he had backed into
the other car. The deputy then arrested Henderson for driving under the influence.
After reading Henderson his Miranda rights, the deputy read Henderson the
implied consent notice as follows:
Georgia law requires you to submit to a state-administered chemical test under blood, breath, urine or other bodily substances for the purposes of determining if you’re under the influence of . . . alcohol or drugs. If you refuse this testing, your Georgia’s driver’s license or the privilege to drive on the highways of the state will be suspended for a minimum period 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 .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.
2 After 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 test of your . . . breath under the Implied Consent law?1
Henderson responded affirmatively, and he was taken to the jail where he was asked
to provide two breath samples. Before administering the test, a second deputy
confirmed with Henderson that he was freely submitting to the tests. Henderson then
provided the samples, both of which showed he had a blood-alcohol content over the
legal limit.
Henderson filed a motion in limine to exclude the results of the breath test,
arguing that the implied consent read to him was misleading. The trial court agreed.
Citing extensively from the Supreme Court’s recent case of Elliott v. State, 305 Ga.
179 (824 SE2d 265) (2019), the trial court concluded that the implied consent notice
given “was materially and substantially misleading because it suggested that if
[Henderson] exercised his constitutional right to refuse the state-administered breath
test, such refusal could be used against him at trial.” Without addressing any other
1 In 2019, the legislature amended OCGA § 40-5-67.1 (b) (2), the implied consent notice for drivers age 21 or older. The deputy read the prior version of the implied consent statute in effect at the time of Henderson’s arrest.
3 circumstances surrounding Henderson’s arrest and breath test, the trial court
concluded that under the totality of the circumstances, Henderson did not voluntarily
submit to the test.
The State appeals this ruling, arguing that the trial court, in relying solely on
the reading of the implied consent notice by the deputy, failed to correctly apply the
totality of the circumstances test. According to the State, the reading of the notice is
only one factor to be considered. Absent evidence showing that a defendant was, in
fact, misled, the State argues that suppression of test results is not warranted.
In recent years, the Supreme Court has weighed in on the constitutionality of
Georgia’s implied consent statute. In Olevik v. State, the Supreme Court recognized
that requiring a defendant to submit a breath sample violates Georgia’s constitutional
right against compelled self-incrimination. See 302 Ga. 228, 241-244 (2) (c) (iii) (806
SE2d 505) (2017). The Supreme Court rejected, however, the argument that the
implied consent notice – the same notice used here – was so inherently coercive that
the mere reading of the statute precluded use of any breath test obtained. See id. at
247-248 (3) (a) (i). Rather, the Supreme Court adopted a “totality of the
circumstances” test for determining whether a defendant voluntarily consented to a
breath test. See id. at 251 (3) (b). Specifically, the Supreme Court held:
4 the voluntariness of a consent to search is determined by such factors as the age of the accused, his education, his intelligence, the length of detention, whether the accused was advised of his constitutional rights, the prolonged nature of questioning, the use of physical punishment, and the psychological impact of all these factors on the accused. In determining voluntariness, no single factor is controlling.
Id. at 251 (3) (b) (punctuation omitted).
Olevik left open the question of the constitutional implications of a defendant’s
refusal to submit to testing. That question was answered by the Supreme Court in
Elliott v. State, which held that our constitutional guarantee against self-incrimination
precludes the admission of evidence that a driver refused to submit to a breath test.
See 305 Ga. 179, 179-180 (824 SE2d 265) (2019). The Supreme Court went on to
note that its holding in Elliott “may affect a totality-of-the-circumstances inquiry into
whether a defendant voluntarily submitted to a breath test where the State first
threatened that, if [the defendant] refused, that would be evidence against [the
defendant] at trial.” Id. at 223 (IV) (E). But the Supreme Court declined to address
how its ruling affected the totality of the circumstances inquiry. Id. In subsequent
cases, however, we have continued to employ the totality of the circumstances
inquiry. See Kallon v. State, __ Ga. App. __ (845 SE2d 348) (2020); Melton v. State,
5 354 Ga. App. 828 (841 SE2d 481) (2020); Fofanah v. State, 351 Ga. App. 632, 636
(2) (b) (832 SE2d 449) (2019).
Based on Olevik and Elliott and their progeny, it is clear that when a defendant
seeks to suppress evidence of a breath test, the appropriate inquiry remains whether
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FIRST DIVISION BARNES, P. J., GOBEIL 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
DEADLINES ARE NO LONGER TOLLED IN THIS COURT. ALL FILINGS MUST BE SUBMITTED WITHIN THE TIMES SET BY OUR COURT RULES.
August 25, 2020
In the Court of Appeals of Georgia A20A1293. THE STATE v. HENDERSON.
PIPKIN, Judge.
Brandon Doyle Henderson was charged with driving under the influence, and
he filed a motion in limine to exclude the results of his breath test. The trial court
found that Henderson had been misled into consenting to a breath test and granted the
motion. The State appeals. Because we find that the trial court failed to properly
apply the “totality of the circumstances” inquiry, we vacate and remand.
In reviewing a trial court’s ruling on a motion to suppress, we defer to a trial
court’s factual findings. State v. Council, 348 Ga. App. 497, 497 (823 SE2d 817)
(2019). But where there are no disputed issues of fact or credibility issues, we review
the trial court’s application of the law de novo. Id. at 500. So viewed, the record evidence shows that on June 16, 2018, Henderson
backed his vehicle into another car parked in a bar’s parking lot. A sheriff’s deputy
on duty in the parking lot saw the collision and followed Henderson, who had exited
his car and gotten in line to enter the bar. The deputy asked Henderson to step out of
the line to talk to him, and Henderson complied. According to the deputy, Henderson
was unsteady on his feet, smelled of alcohol, and was slurring his words. Henderson
admitted to the deputy that he had “had a couple of beers” and that he had backed into
the other car. The deputy then arrested Henderson for driving under the influence.
After reading Henderson his Miranda rights, the deputy read Henderson the
implied consent notice as follows:
Georgia law requires you to submit to a state-administered chemical test under blood, breath, urine or other bodily substances for the purposes of determining if you’re under the influence of . . . alcohol or drugs. If you refuse this testing, your Georgia’s driver’s license or the privilege to drive on the highways of the state will be suspended for a minimum period 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 .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.
2 After 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 test of your . . . breath under the Implied Consent law?1
Henderson responded affirmatively, and he was taken to the jail where he was asked
to provide two breath samples. Before administering the test, a second deputy
confirmed with Henderson that he was freely submitting to the tests. Henderson then
provided the samples, both of which showed he had a blood-alcohol content over the
legal limit.
Henderson filed a motion in limine to exclude the results of the breath test,
arguing that the implied consent read to him was misleading. The trial court agreed.
Citing extensively from the Supreme Court’s recent case of Elliott v. State, 305 Ga.
179 (824 SE2d 265) (2019), the trial court concluded that the implied consent notice
given “was materially and substantially misleading because it suggested that if
[Henderson] exercised his constitutional right to refuse the state-administered breath
test, such refusal could be used against him at trial.” Without addressing any other
1 In 2019, the legislature amended OCGA § 40-5-67.1 (b) (2), the implied consent notice for drivers age 21 or older. The deputy read the prior version of the implied consent statute in effect at the time of Henderson’s arrest.
3 circumstances surrounding Henderson’s arrest and breath test, the trial court
concluded that under the totality of the circumstances, Henderson did not voluntarily
submit to the test.
The State appeals this ruling, arguing that the trial court, in relying solely on
the reading of the implied consent notice by the deputy, failed to correctly apply the
totality of the circumstances test. According to the State, the reading of the notice is
only one factor to be considered. Absent evidence showing that a defendant was, in
fact, misled, the State argues that suppression of test results is not warranted.
In recent years, the Supreme Court has weighed in on the constitutionality of
Georgia’s implied consent statute. In Olevik v. State, the Supreme Court recognized
that requiring a defendant to submit a breath sample violates Georgia’s constitutional
right against compelled self-incrimination. See 302 Ga. 228, 241-244 (2) (c) (iii) (806
SE2d 505) (2017). The Supreme Court rejected, however, the argument that the
implied consent notice – the same notice used here – was so inherently coercive that
the mere reading of the statute precluded use of any breath test obtained. See id. at
247-248 (3) (a) (i). Rather, the Supreme Court adopted a “totality of the
circumstances” test for determining whether a defendant voluntarily consented to a
breath test. See id. at 251 (3) (b). Specifically, the Supreme Court held:
4 the voluntariness of a consent to search is determined by such factors as the age of the accused, his education, his intelligence, the length of detention, whether the accused was advised of his constitutional rights, the prolonged nature of questioning, the use of physical punishment, and the psychological impact of all these factors on the accused. In determining voluntariness, no single factor is controlling.
Id. at 251 (3) (b) (punctuation omitted).
Olevik left open the question of the constitutional implications of a defendant’s
refusal to submit to testing. That question was answered by the Supreme Court in
Elliott v. State, which held that our constitutional guarantee against self-incrimination
precludes the admission of evidence that a driver refused to submit to a breath test.
See 305 Ga. 179, 179-180 (824 SE2d 265) (2019). The Supreme Court went on to
note that its holding in Elliott “may affect a totality-of-the-circumstances inquiry into
whether a defendant voluntarily submitted to a breath test where the State first
threatened that, if [the defendant] refused, that would be evidence against [the
defendant] at trial.” Id. at 223 (IV) (E). But the Supreme Court declined to address
how its ruling affected the totality of the circumstances inquiry. Id. In subsequent
cases, however, we have continued to employ the totality of the circumstances
inquiry. See Kallon v. State, __ Ga. App. __ (845 SE2d 348) (2020); Melton v. State,
5 354 Ga. App. 828 (841 SE2d 481) (2020); Fofanah v. State, 351 Ga. App. 632, 636
(2) (b) (832 SE2d 449) (2019).
Based on Olevik and Elliott and their progeny, it is clear that when a defendant
seeks to suppress evidence of a breath test, the appropriate inquiry remains whether
the defendant’s consent to the test was voluntary under the totality of the
circumstances. See Olevik, supra; Elliott, supra; Kallon, supra; Melton, supra;
Fofanah, supra. Here, the trial court focused solely on the misleading nature of the
implied consent warning.2 In so doing, the trial court ignored the Supreme Court’s
holding in Olevik that, “[i]n determining voluntariness, no single factor is
controlling.” Olevik, 302 Ga. at 251 (3) (b). Although the reading of the implied
consent notice may be one factor that is considered in determining whether consent
to a breath test was voluntary, the trial court also must consider factors such as a
defendant’s age, education, capacity, the nature of questioning, and any threats
employed. See Olevik, 302 Ga. at 251 (3) (b). Where a trial court’s order does not
2 Henderson argued below that there were two inquiries: whether the implied consent notice was “coercive” under the totality of the circumstances, or whether the implied consent warning was “deceptively misleading.” He is mistaken. The appropriate inquiry is whether the consent to testing was voluntary based on a totality of the circumstances. Olevik, 302 Ga. at 251 (3) (b).
6 reflect consideration of voluntariness under the totality of the circumstances, remand
is required. See Melton, 354 Ga. App. at 831-831.
Judgment vacated and case remanded. Barnes, P. J., and Gobeil, J., concur.