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State v. Marks7/29/1999
In the Court of Appeals of Georgia
EL-051C
The State appeals from a Cobb County State Court order granting Susan Marks' motion to suppress Marks' refusal to take a State-administered breath test.
At approximately 2:30 a.m., appellee Susan Marks, Eric Billings, and five unnamed women were involved in a three car accident on Barrett Parkway on the I-75 entrance ramp. Marks and Billings had just left Cowboys, a nearby bar. Marks rear-ended Billings' vehicle, which had rear-ended the vehicle occupied by the unnamed females. All three vehicles stopped in the road, and all passengers and drivers were milling around the vehicles when Officer B. Perez arrived on the scene.
Upon arrival, Perez "observed that two drivers were heavily intoxicated, and that's when I made contact with Susan Marks." The officer spoke to Marks and "observed a heavy odor of alcoholic beverage on her, and I asked her if she had been drinking that night. She said she had just left Cowboys and had four or five drinks that night." Officer Perez administered field sobriety tests to Marks.
Marks "performed the finger to nose, which she failed both times, the heel to toe walk, which she failed, and the alphabet, which she did pretty fine, and the one-leg stand."
The entire process was captured on video tape. During one part of the testing, Marks questioned the officer, asking "Why am I doing all these when they [the unnamed women] cut us [Marks and Billings] off?" On the videotape, Marks accused the officer of blaming her for the accident and thus making her perform the tests. Perez told Marks that the other drivers would be questioned too, and the officer "then gave her [Marks] a registered - gave her an alcosensor which she registered positive on. I gave her that before and after field tests. She registered positive both times." Marks was arrested at 2:50 a.m. and placed in the back of Perez' patrol car.
During the entire course of the field testing and questioning of Susan Marks, Eric Billings was continuously, as the trial Judge put it, "kibitzing the situation, that is, he was making comments and throwing out things as [the officer was] trying to handle investigation." Officer Perez testified that "I kept having to look over there, and Officer Littler kept having to tell him to get back also."
After placing Marks in the back of the patrol car, Officer Perez turned her attention to Eric Billings. Billings admitted to having "four or five drinks at Cowboys," as well as several beers at an earlier Braves Game. Perez administered the same field sobriety tests to Billings. He failed them and was placed under arrest. Immediately following arrest, Perez read Billings the implied consent notice for those age 21 and over. OCGA § 40-5-67.1 (b) (2). When asked whether he consented to testing or not, Billings refused testing, complaining that the implied consent notice failed to contain the information that a hearing is held before one's driver's license is suspended for refusing to take a State administered chemical test.
The videotape shows that at approximately 3:06 a.m., Officer Perez placed Billings in the back of her patrol car along with Marks. Immediately thereafter, in the amount of time it took Perez to walk around the car to Marks' side, Perez then read the implied consent notice to Marks. The audio portion of the videotape records no conversation between Marks and Billings while Perez was walking around the patrol car. Further, Perez did not hear any conversation. Also, Billings did not speak while Perez read the implied consent to Marks.
Perez began reading Marks the implied consent notice approximately 16 minu
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