FOURTH DIVISION MERCIER, C. J., DILLARD, P. J., and LAND, J.
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
May 22, 2025
In the Court of Appeals of Georgia A25A0603. NEWMAN v. THE STATE.
LAND, Judge.
In this interlocutory appeal involving a DUI arrest, William Newman appeals
the trial court’s denial of his motion to suppress his blood test. Newman argues that
the trial court erred in denying his motion to suppress without considering whether
Georgia’s implied consent laws are unconstitutional on their face and as applied.
Newman also argues that the trial court erred in finding that law enforcement had
reasonable probable cause to detain him, that officers did not unlawfully prolong the
traffic stop, that Newman consented to the blood test, and in applying the Harper v.
State, 249 Ga. 519 (292 SE2d 389) (1982), standard to Newman’s OCGA § 24-7-702
challenge regarding an officer’s administration of the HGN test rather than Daubert v. Merrell Dow Pharmaceuticals, 509 U. S. 579 (113 SCt 2786, 125 LE2d 469) (1993).
For the reasons discussed below, we affirm in part, vacate in part, and remand the case
with direction.
“Following the grant or denial of a motion to suppress, we construe the
evidence in the light most favorable to uphold the findings and judgment of the trial
court.” Grimes v. State, 303 Ga. App. 808, 808-809 (1) (695 SE2d 294) (2010).
Moreover, we accept the trial court’s findings of fact and credibility determinations
if there is any evidence to support them. See id.
So viewed, the record shows that on November 20, 2021, the Kennesaw police
department received two 911 calls about a black Ford truck impeding traffic. Officer
David Hubbartt was dispatched to the scene. Meanwhile, Officer Kasmere Redvine
and a trainee officer , the closest unit to the scene, responded first. When they arrived,
the officers found Newman’s truck, which was still running, stopped in the middle of
Kennesaw 75 Parkway. Officer Redvine instructed the trainee officer to try to make
contact with the driver while he directed traffic around the truck. Moments later,
Officer Redvine also approached the driver’s side of the truck and saw Newman, who
appeared to be asleep at the wheel. The officers knocked on the window a few times
2 to wake Newman up and asked him to get out of the vehicle. Newman, who “seemed
disoriented,” rolled up the window instead. Officer Redvine knocked on the window
again. When Newman rolled down his window, Officer Redvine reached in Newman’s
vehicle, opened the door, and ordered Newman to exit the truck. Officer Redvine
testified that he wanted Newman out of the truck “because in some situations in the
past, there have been people who have fallen asleep at the wheel, woken up and just
taken off . . . the first thing we wanted to do was separate him from the vehicle.”
Newman exited the truck, and the officers questioned him about his alcohol
consumption and his general condition. Officer Redvine noticed that Newman had an
odor of alcohol on his person, glassy eyes, and slurred speech. Bodycam video from
the officers showing the beginning of Newman’s interaction with the officers was
introduced during the motion to suppress hearing. The trainee officer did not testify.
Approximately three to five minutes later, Officer Hubbartt arrived at the scene
and took over the investigation. Portions of Officer Hubbartt’s bodycam footage were
played during the hearing. Officer Hubbartt noticed that Newman had slurred speech,
emitted an odor of alcohol, and had glassy, watery eyes. Newman stated that he had
consumed alcoholic beverages earlier that day.
3 Officer Hubbartt then had Newman perform field sobriety tests, including
horizontal gaze nystagmus (“HGN”), the walk and turn and one leg stand, and had
him blow into a portable breathalyzer. Newman showed six out of six clues on the
HGN, five clues of impairment on the walk and turn, three out of four clues on the
one leg stand, and blew a positive result for alcohol on the portable breathalyzer.
Officer Hubbartt then arrested Newman for DUI-Alcohol.1 After placing Newman in
the rear of his patrol vehicle,2 Officer Hubbartt testified that he read Newman
“verbatim” the implied consent notice for suspects ages 21 and over as required by
OCGA § 40-5-67.1 (b) (2). He then requested a chemical test of Newman’s blood. In
response, Newman, in rapid succession, consented to have his blood tested, withdrew
his consent, and then gave his consent again.3 Newman was transported to the
1 Officer Hubbartt issued three citations to Newman for impeding traffic (OCGA § 40-6-184), failing to maintain lane (OCGA § 40-6-48), and DUI- Alcohol 1ess safe (OCGA § 40-3-391 (A) (1)). 2 Officer Hubbartt’s bodycam footage indicates that the implied consent notice was read approximately 17 minutes after he arrived at the scene. 3 Officer Hubbartt’s bodycam footage shows Newman gave the following responses to Officer Hubbartt: “I have to submit to that right? . . . But I’m trapped if I say one or the other . . . You already have me in the back of a car . . . I guess I’ll submit to yes because I mean I’m sitting in the back of the car now . . . I guess it doesn’t really matter, it doesn’t matter from what that says. Sure, I will submit to 4 Acworth City Jail, where his blood was drawn by a nurse . The blood samples were
packaged and sent to the Georgia Bureau of Investigation’s (“GBI”) Division of
Forensic Sciences blood laboratory. Newman did not request an independent test of
his blood, breath, or urine at any point.
On December 2, 2021, Newman, through counsel, sent a letter to GBI advising
that Newman was withdrawing “any and all assumed or purported consent to blood
testing and blood analysis,” and demanding return or destruction of the blood sample.
GBI responded and informed Newman that his consent could not be withdrawn.
Subsequently, a GBI forensic toxicologist tested Newman’s blood, which showed that
Newman’s blood alcohol concentration was 0.156. Newman was charged with one
count each of driving with an unlawful alcohol content (OCGA § 40-6-491 (a) (5)),
driving under the influence of alcohol (OCGA § 40-6-391 (a) (1)), violation of
minimum speed (OCGA § 40-6-184), and failure to maintain lane (OCGA § 40-6-48).
Newman filed motions in limine and to suppress the blood test results,
challenging, among other things, whether officers had reasonable suspicion to stop and
detain him, whether Officer Hubbartt had reasonable suspicion to perform field
whatever that says . . because the fact is . . . [.]” 5 sobriety tests, whether Officer Hubbartt had probable cause to arrest Newman,
whether Newman gave consent and/or withdrew consent for the blood draw, and the
constitutionality of the State of Georgia’s implied consent scheme. After a hearing,
Newman filed an additional memorandum in support of his motion to suppress. At a
second hearing at which no additional evidence was presented, the trial court entered
an order denying the motions. The trial court certified its decision for immediate
review, and this Court granted Newman’s application for interlocutory appeal.4 This
appeal followed.
1. Newman argues that the trial court erred in denying his motion to suppress
on the basis that he consented to the blood draw without first addressing his
constitutional challenges to Georgia’s implied consent laws. Newman asserts that the
trial court “misunderstood the law and [Newman’s] constitutional challenges as being
based solely on the argument that [Newman’s] consent to a blood draw was
unconstitutional as it was coercive because [Newman] was placed at risk of losing his
4 Although Newman initially filed his application for interlocutory appeal in the Georgia Supreme Court, our Supreme Court found that it did not have jurisdiction in this case because the trial court “did not distinctly or by necessary implication rule upon any novel constitutional issue raised by” Newman. Accordingly, the application was transferred to this Court. 6 license.” In its order, however, the trial court declined to address the merits of all of
Newman’s constitutional challenges. After explaining that Newman’s motions “state
that the State’s implied consent scheme is unconstitutional on its face and as applied
and that his consent to a blood draw was unconstitutional as it was coercive,” the trial
court concluded that”if [Newman] did voluntarily consent, then there is no need to
evaluate [Newman’s] constitutional challenges.” “Because the trial court did not rule
on the constitutional question[s], the constitutional issue[s] [are] not properly before
this court.” (Citation and punctuation omitted.) Teasley v. Clark, 361 Ga. App. 721,
722 (2) (865 SE2d 556) (2021).
2. Newman argues that the trial court erred in finding that the trainee officer
had reasonable articulable suspicion to detain him and that he did not unlawfully
prolong the traffic stop. Newman also argues that the State failed to prove that Officer
Redvine was diligent in pursuing the mission of the stop because Officer Redvine
“unlawfully trespassed inside” his vehicle when Officer Redvine reached inside the
vehicle, grabbed the door handle, and opened Newman’s door before ordering him to
exit the vehicle. We disagree.
7 “The Fourth Amendment protects a person’s right to be secure against
unreasonable searches and seizures.” (Citation and punctuation omitted.) Sommese
v. State, 299 Ga. App. 664, 668 (1) (683 SE2d 642) (2009). “The burden of proof of
establishing that appellee was not subjected to an illegal seizure of his person rests
upon the State.” State v. Holler, 224 Ga. App. 66, 69 (2) (479 SE2d 780) (1996).
As this Court and our Supreme Court have explained many times before, encounters between police officers and citizens come in three varieties, at least as far as the Fourth Amendment is concerned: encounters involving no coercion or detention, which are outside the purview of the Fourth Amendment altogether; brief seizures, which require an officer to have a reasonable suspicion of criminal wrongdoing; and custodial arrests, which require probable cause.
(Citation and punctuation omitted.) State v. Perry, 349 Ga. App. 475, 476 (825 SE2d
902) (2019).
If a driver is impeding traffic, an officer has reasonable grounds to conduct a
traffic stop. See Whitmore v. State, 289 Ga. App. 107, 109-110 (657 SE2d 1) (2008). An
investigatory stop of a vehicle, however, “cannot be unreasonably prolonged beyond
the time required to fulfill the purpose of the stop.” (Footnote and punctuation
omitted.) Baggett v. State, 367 Ga. App. 851, 857-858 (1) (b) (888 SE2d 636) (2023).
8 “It is well established that officers may, without unreasonably prolonging a stop, ask
the driver to step out of the vehicle[.]” (Citation and punctuation omitted.) McNeil
v. State, 362 Ga. App. 85, 89 (866 SE2d 249) (2021). See also Rogers v. State, 323 Ga.
App. 647, 650 (747 SE2d 213) (2013) (as an extension of the constitutionally valid
detention resulting from the traffic stop, an officer can order the driver and passengers
out of the vehicle) (citation and punctuation omitted).
“An officer who questions and detains a suspect for reasons other than those
connected with an original purpose of the stop exceeds the scope of permissible
investigation unless he has ‘reasonable suspicion’ of other criminal activity.”
(Citations omitted.) State v. Gibbons, 248 Ga. App. 859, 863-864 (547 SE2d 679)
(2001). However, “information learned during the course of a traffic stop may provide
a law enforcement officer ‘with reasonable, articulable suspicion to prolong the traffic
stop.’” (Footnote and punctuation omitted.) Baggett, 367 Ga. App. at 858 (1) (b).
“The specific articulable suspicion must be based on the totality of the circumstances
– objective observations, known patterns of certain kinds of lawbreakers, and
inferences drawn, and deductions made by trained law enforcement personnel.”
(Footnote omitted.) Veal v. State, 273 Ga. App. 47, 49 (614 SE2d 143) (2005).
9 Newman does not challenge the trial court’s conclusion that Newman’s act of
impeding traffic provided the officers with reasonable grounds to conduct a traffic
stop. See Whitmore, 289 Ga. App. at 109-110. Officers were therefore permitted to
order Newman out of the vehicle. See Rogers, 323 Ga. App. at 650. Accordingly, the
trainee officer’s testimony was not necessary under these circumstances. See
Stadnisky v. State, 285 Ga. App. 33, 37 (2) (645 SE2d 545) (2007) (rejecting
defendant’s argument that the State failed to prove defendant’s initial encounter with
police was a “first-tier” encounter because initial officer did not testify where “there
were abundant objective circumstances . . . that would have authorized a seizure”)
Moreover, Officer Redvine approached the driver’s side of the truck only
seconds after the trainee officer and saw that Newman appeared to be asleep inside the
truck with it still running. When awakened, Newman ignored the officers’ knocks and
requests to exit the vehicle, instead choosing to roll up his window. Accordingly,
under the totality of the circumstances – including Officer Redvine’s observation that
Newman was asleep at the wheel, Newman’s behavior when asked to roll down his
window and exit the vehicle, and Officer Redvine’s prior experience with DUI
suspects – we conclude that Officer Redvine’s action of opening Newman’s truck
10 door and ordering that Newman exit the vehicle was supported by reasonable
articulable suspicion. See Pierce v. State, 319 Ga. App. 721, 723 (738 SE2d 307) (2013)
(officer had reasonable suspicion to detain defendant when he found [defendant]
asleep behind the wheel of a vehicle with the engine running, and she was
unresponsive when he initially shined his flashlight inside her vehicle). Compare
Smith v. State, 288 Ga. App. 87, 88 (653 SE2d 510) (2007) (trial court erred in denying
defendant’s motion to suppress where officers, who had not observed the defendant
engage in any criminal activity or violate any traffic offenses, approached defendant’s
parked car, opened the car door, and asked the defendant to step out).
3. Newman argues that the trial court erred in finding that Newman consented
to the blood test because the implied consent notice was coercive and because any
purported consent was later withdrawn. We disagree.
“[I]t is well settled in the context of a DUI blood draw that a valid consent to
a search eliminates the need for either probable cause or a search warrant.” Williams
v. State, 296 Ga. 817, 821 (771 SE2d 373) (2015). However, the mere reading of the
implied consent notice does not constitute actual and voluntary consent. Elliott v.
State, 305 Ga. 179, 221-223 (IV) (E) (824 SE2d 265) (2019). In determining whether
11 a suspect voluntarily consents to a search, the totality of the circumstances test is used
to determine whether a defendant who has been read the implied consent notice
thereafter voluntarily consented to a chemical test. See State v. Henderson, 356 Ga.
App. 473, 476 (847 SE2d 833) (2020) (“it is clear that when a defendant seeks to
suppress evidence of a chemical test, the appropriate inquiry remains whether the
defendant’s consent to the test was voluntary under the totality of the
circumstances.”). “A consent to search will normally be held voluntary if the totality
of the circumstances fails to show that the officers used fear, intimidation, threat of
physical punishment, or lengthy detention to obtain the consent.”(Citation and
punctuation omitted.) Kendrick v. State, 335 Ga. App. 766, 769 (782 SE2d 842) (2016).
“Other factors to be considered are prolonged questioning; the accused’s age, level
of education, intelligence and advisement of constitutional rights; and the
psychological impact of these factors on the accused.”(Citation and punctuation
omitted.) Id. In determining voluntariness, “no single factor is controlling.” Olevik
v. State, 302 Ga. 228, 251 (3) (b) (806 SE2d 505) (2017).
(a) Newman argues that the trial court erred in finding that Newman consented
to the blood test because the implied consent notice was itself coercive and because
12 Officer Hubbartt improperly advised him that his only options under the implied
consent were “yes” and “no” without advising him that he could say yes and receive
an independent test.5
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.
(Citations and punctuation omitted.) State v. Chun, 265 Ga. App. 530, 531 (594 SE2d
732) (2004). This Court has previously recognized that “Georgia’s implied consent
law offers two choices to DUI suspects: (1) submit to State-administered chemical
testing with right to independent testing, if desired, or (2) refuse State testing,
5 Newman’s other arguments that he did not voluntarily consent because the implied consent notice was itself coercive and because he did not receive a Miranda warning are similarly unpersuasive. See Olevik, 302 Ga. at 252 (3) (b) (the reading of the implied consent “is not, by itself, coercive”); Fofanah v. State, 351 Ga. App. 632, 635 (832 SE2d 449) (2019) (“an arrestee is not, under Georgia constitutional or statutory law, entitled to Miranda warnings before deciding whether to submit to the State’s request for a [blood] test”) (citation and punctuation omitted). 13 suffering the attendant evidentiary consequences.” (Citation and punctuation
omitted.) Hynes v. State, 341 Ga. App. 500, 507 (801 SE2d 306) (2017).
Here, any indication to Newman that his only options under the implied
consent were “yes” and “no” without advising him that he could say yes and receive
an independent test was not misleading because it “did not constitute a substantive
change that altered the meaning of the implied consent notice.”6 McHugh v. State, 285
Ga. App. 131, 134 (645 SE2d 619), 621 (2007). Officer Hubbartt read the implied
consent notice “verbatim,” which included the language that Newman could have a
test done at his own expense and by a person of his choosing. See Perano v. State, 250
Ga. 704, 707 (300 SE2d 668) (1983) (an officer must inform a suspect at the time of
arrest of his right to an independent chemical test). There is nothing in the record
showing that Officer Hubbartt prevented Newman from requesting an independent
blood test or that Newman requested one. Moreover, there was no evidence as to
6 In any event, this Court has “held that the inclusion of misleading information in the implied consent notice does not render the notice unconstitutionally coercive on its face.” (Citation and punctuation omitted.) Losurdo v. State, __ Ga. App. __ (912 SE2d 332, 334) (2025). Instead, “the appropriate inquiry is whether the defendant’s consent to the [blood] test was voluntary under the totality of the circumstances.” (Citation and punctuation omitted.) Id. As explained above, the trial court did not err in finding Newman voluntarily consented to the blood test based on the totality of the circumstances. 14 Newman’s age, education, or intelligence. His detention was brief; approximately 17
minutes elapsed between Officer Hubbartt arriving on the scene and the reading of the
implied consent notice. There was no evidence of any prolonged questioning,
intimidation, fear, or threat of physical punishment. When Officer Hubbartt read the
implied consent notice to Newman, Newman consented, withdrew that consent, and
consented again. Thus, based on the totality of the circumstances, the trial court did
not err in finding Newman voluntarily consented to the blood test.
(b) Newman also argues that he successfully withdrew any consent to have his
blood tested when he sent the GBI a letter on December 2, 2021 revoking his consent
prior to his blood being analyzed.
“As the term ‘implied consent’ indicates, every driver’s consent to a chemical
test for intoxication is implied by law.” State v. Stewart, 286 Ga. App. 542, 544 (1)
(649 SE2d 525) (2007). “Specifically, everyone who operates a motor vehicle in
Georgia implicitly consents to the chemical testing of their bodily fluids in the event
they are arrested for DUI, but they may revoke that consent by refusing to submit to
such testing.” Id. “[A]ctual consent to a blood draw is not ‘implied consent,’ but
rather a possible result of requiring the driver to choose whether to consent under the
15 implied consent law.” (Citation and punctuation omitted.) Williams v. State, 296 Ga.
817, 823 (771 SE2d 373) (2015). Thus, “in the context of a DUI blood draw . . . a valid
consent to a search eliminates the need for either probable cause or a search warrant.”
State v. Bowman, 337 Ga. App. 313, 316 (787 SE2d 284) (2016).
In rejecting Newman’s argument below, the trial court relied on State v.
Simmons, 270 Ga. App. 301 (605 SE2d 846) (2004). In Simmons, the defendant
consented to a State-administered blood test after his arrest for DUI, and he was
transported to the hospital where his blood was drawn and submitted to the crime lab
for analysis. Id. at 304 (Ruffin, J., concurring). Eleven days later, but prior to the blood
analysis, the defendant wrote to the crime lab to withdraw his consent to the blood
test. Id. at 301. The trial court granted the defendant’s motion to suppress, finding
that the defendant could withdraw his consent at any time before the blood sample
was analyzed. Id. at 301. This Court reversed, concluding that the trial court’s
reasoning that a defendant is “entitled to withdraw his duly given consent to State-
administered testing on the theory that chemical analysis of his blood sample had not
yet begun, is . . . contrary to our implied consent law.” Id. at 304. On appeal, Newman
asserts that Simmons is not applicable because it was decided “before the
16 constitutional right to refuse intrusive warrantless blood draws was recognized.”7 See
Olevik, 302 Ga. at 233 (2) (a) (“Georgians do have a constitutional right to refuse to
consent to warrantless blood tests, absent some other exception to the warrant
requirement”). However, Newman has not shown why this would require a different
outcome here, where, like in Simmons, Newman did not purport to withdraw his
consent until 11 days after his blood was drawn. We see no meaningful distinction
between this case and Simmons. Consequently, the trial court did not err in finding
Newman’s consent to the blood test was voluntary and that Newman could not
withdraw that consent after submitting to a blood draw.
4. Newman argues that the trial court erred in applying the Harper v. State, 249
Ga. 519 (292 SE2d 389) (1982), standard to Newman’s OCGA § 24-7-702 challenge
regarding an officer’s administration of the HGN test rather than Daubert v. Merrell
Dow Pharmaceuticals, 509 U.S. 579 (113 SCt 2786, 125 LE2d 469) (1993). We agree.
7 Although Newman also argues that Simmons is physical precedent only, Judge Ruffin concurred fully in the majority’s conclusion that the trial court erred when it granted the defendant’s motion to suppress on the theory that chemical analysis of his blood sample had not yet begun. See Simmons, 270 Ga. App. at 301-306 (Ruffin, J., concurring specially) (defendant’s attempt to withdraw his consent to blood testing several days after he allowed his blood to be drawn was “untimely and, thus, ineffectual”). 17 In 2022, the General Assembly amended the Evidence Code “to extend to
criminal cases the federal standard of admissibility of expert testimony articulated in
Daubert and its progeny.” Smith v. State, 315 Ga. 287, 300 (2) (b) n.6 (882 SE2d 300)
(2022) (citing OCGA § 24-7-702). “Under that standard, a trial court must evaluate
the reliability of the expert’s proffered testimony[.]” Id. “[P]roper considerations
include whether a theory or technique can be tested, whether it has been subjected to
peer review and publication, the known or potential rate of error for the theory or
technique, the general degree of acceptance in the relevant scientific or professional
community, and the expert’s range of experience and training.” (Citation and
punctuation omitted.) Id. Thus, the Supreme Court of Georgia has stated that “the
Harper standard does not apply to cases tried after July 1, 2022.” Nundra v. State, 316
Ga. 1, 15 (5) (b) n.5 (885 SE2d 790) (2023).
In its order denying Newman’s motion to suppress, the trial court noted that
“[t]he HGN test is generally accepted to have, ‘reached a state of verifiable certainty
in the scientific community and is admissible as a basis upon which an officer can
determine that a driver was impaired by alcohol[,]’” citing Spencer v. State, 302 Ga.
133, 136 (805 SE2d 886) (2017). The trial court found that the State was still required
18 to meet a second component of foundation — that the tester substantially performed
the scientific procedures in an acceptable manner. See Duncan v. State, 305 Ga. App.
268, 271 (2) (699 SE2d 341) (2010). The trial court then concluded that Officer
Hubbartt performed the HGN test in an acceptable manner to support his conclusion
that Newman was impaired. However, as the State concedes, “the trial court should
have considered [Officer Hubbartt’s] qualifications to testify as to the HGN test as
well as the relevance and reliability of the proffered testimony based on the Daubert
standard.” Garrison v. State, 319 Ga. 711, 727 (3) (c) (i) (905 SE2d 629) (2024).
Because the trial court did not do that here, we vacate this portion of the trial court’s
order and “remand the case for the trial court to exercise its discretion to determine
under the correct standard, as set forth in OCGA § 24-7-702, whether the HGN
testimony was properly admitted.” Id. at 730 (3) (c) (ii).
Judgment affirmed in part and vacated in part, with case remanded with direction.
Mercier, C. J., and Dillard, P. J., concur.