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State v. Gillaspy10/19/2004
The State appeals from the Cobb County State Court's grant of Caressa Gillaspy's motion to suppress the results of her blood test for failure to provide Gillaspy with an independent chemical test pursuant to Implied Consent laws. Because the evidence of record does not establish that Gillaspy made a request for an independent chemical test, we reverse.
Officer C. Flowers with the City of Smyrna Police Department stopped Gillaspy for committing a traffic violation. Upon speaking with her, the officer smelled an odor of an alcoholic beverage. A subsequent sobriety investigation led to Gillaspy's arrest for DUI. Flowers then timely read Gillaspy the Implied Consent Notice for suspects age twenty-one and over, OCGA § 40-5-67.1(b)(2). An audio-video tape of the reading is before us. While reading the conclusion of the statutory notice to Gillaspy, the following colloquy ensued:
[Flowers (reading):] '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 breath under the implied consent law?'
[Gillaspy:] I will do a blood test.
[Flowers:] You want a blood test? Well, let me re-read it to you. 'Will you submit to the state administered chemical tests of your blood under the implied consent law?'
[Gillaspy:] Yes, sir.
Officer Flowers took Gillaspy to Emory Adventist Hospital in Smyrna where her blood was drawn. A subsequent analysis performed by the GBI Crime Lab showed a blood alcohol content of 0.18. Gillaspy did not request another, independent test of her blood; nor did she express dissatisfaction with Officer Flower's accommodation of her request for a blood test, as opposed to a breath test.
Gillaspy filed a motion to suppress wherein it was claimed that the statement, "I will do a blood test," was a request for an independent chemical test. A hearing was held on the motion. Notably, Gillaspy did not testify. Officer Flowers testified at the motion hearing that he interpreted Gillaspy's statement, "I will do a blood test," as a response to his question, "Will you submit to a breath test," and, as such, was a statement regarding the specific State-administered chemical test to which Gillaspy would submit. Flowers then designated a State-administered blood test to accommodate Gillaspy. He testified that Gillaspy did not ask for an independent blood test.
Based upon two decisions from this Court, Johnson v. State [FN1] and Ladow v. State, [FN2] the trial court determined that the phrasing, "I will do a blood test," constituted a request for an independent chemical test because it was "no different in its phrasing or substance than the statements made by the defendants in Ladow or Johnson, supra." Held:
*2 An accused's right to have an additional, independent chemical test administered is invoked by some statement that reasonably could be construed--in light of the circumstances--to be an expression of a desire for an additional, independent test. [FN3] In adhering to this principle, we are guided by the circumstances surrounding an alleged request, not simply the semantics of the alleged request, itself. In that regard, a statement such as that found in this case, or in Ladow, or in Johnson, does not occur in isolation. Thus, while Gillaspy's statement, "I will do a blood test," may be substantively the same as the statement made by the defendant in Johnson, "
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