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Monas v. State10/12/2004
tate-administered breath test should have been suppressed because she did not understand her implied consent rights. It is undisputed, however, that Corporal Davis correctly read Monas's rights to her. "[Monas] does not contend that the implied consent warning the officer read to [her] was not correct, but rather, that it was misleading. The proper implied consent warning as enacted by the legislature was read to [Monas] without error. This enumeration, therefore, must fail." (Citation and punctuation omitted.) Hobbs v. State. [FN4]
To the extent that Monas raises further contentions on this matter, she has argued that her version of events is true and that the several officers who arrested her are lying. Such issues of credibility are not for this Court to consider, and, as such, they do not change the result here. Hobbs, supra.
(b) Monas contends that the trial court erred by denying her motion to suppress her refusal to consent to a state-administered breath test because she alleges that the State improperly destroyed an exculpatory tape recording of the events of her stop. This contention fails.
The record shows that, for at least some portion of Monas's stop following her arrest, Corporal Davis tape recorded his conversation with the defendant. Prior to trial, however, this tape was lost, and, as a result, the State was unable to provide the tape to Monas. Contending that the State intentionally destroyed the tape, Monas argued to the trial court that, contrary to Corporal Davis's testimony, she never refused a state-administered breath test and that the tape would have proven her contention.
As a general matter,
In dealing with the failure of the state to preserve evidence which might have exonerated the defendant, a court must determine both whether the evidence was material and whether the police acted in bad faith in failing to preserve the evidence. Arizona v. Youngblood. [FN5] To meet the standard of constitutional materiality, the evidence must possess an exculpatory value that was apparent before it was destroyed, and be of such a nature that the defendant would be unable to obtain comparable evidence by other reasonably available means. California v. Trombetta. [FN6]
*3 Walker v. State. [FN7]
Even if we assume that Monas shouldered her burden of proving that the tape contained exculpatory material, there is nothing in the record supporting her contention that the State suppressed the tape in bad faith. To the contrary, the record shows that Corporal Davis voluntarily notified Monas of the tape's existence and tried to set up a meeting to give it to her. In addition, Corporal Davis's daughter was a friend of Monas, and Corporal Davis asked the State to be favorable to her. As such, the record indicates that Corporal Davis went out of his way to help Monas, and there is no evidence that he destroyed the tape. Accordingly, Monas's contention must fail.
(c) Monas contends that the trial court erred by denying her motion to suppress all evidence following her stop, arguing that the stop was pretextual. This contention is wholly without merit.
"So long as the stop was based upon conduct the officer observed, not on a mere 'hunch,' and it was not pretextual, arbitrary, or harassing, an officer may act on a legitimate concern for public safety in stopping a driver." State v. Calhoun. [FN8] "A suppression motion arguing that a traffic stop was pretextual necessarily fails where an officer observes the motorist committing even a minor traffic violation." Turner v. State of Ga. [FN9] In this case, Corporal Davis observed Monas staggering, her car weaving, and erratic driving prior to stopping Monas. Her stop was not pretextual.
Judgment affirmed.
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