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Kahl v. State8/3/2004
Following a bench trial, the trial court convicted George Kahl of driving with an unlawful alcohol level and following another vehicle too closely. Kahl appeals, arguing that the trial court erred in denying his motion to suppress evidence of a State-administered chemical breath test. For reasons that follow, we affirm.
When reviewing a ruling on a motion to suppress, we construe the evidence in a light most favorable to the trial court's findings and judgment. [FN1] So viewed, the evidence shows that, on November 11, 2002, a car driven by Kahl rear-ended another vehicle. Officer John Freelander of the Cobb County Police Department responded to the scene of the collision and spoke with Kahl. Freelander detected a strong odor of alcohol about Kahl's breath and person, and he noticed that Kahl had bloodshot eyes and slurred speech.
FN1. See Oliver v. State, 268 Ga.App. 290, 601 S.E.2d 774 (2004).
Freelander administered several field sobriety tests to Kahl, who failed the tests. Kahl also tested positive for alcohol on an alco-sensor. Concluding that Kahl was intoxicated, Freelander read him the *880 implied consent notice under OCGA § 40-5-67.1(b)(2) and placed him under arrest. A video recorder in Freelander's police car recorded the incident. The resulting videotape shows that Freelander arrested Kahl just seconds after reading him the implied consent notice.
Following the arrest, another officer tested Kahl's breath on the Intoxilyzer 5000. Kahl gave two breath samples, which registered alcohol concentrations of .119 and .117 grams, respectively.
Before trial, Kahl moved to suppress the results of his Intoxilyzer 5000 breath test, arguing that Freelander improperly read him the implied consent notice prior to his arrest, rather than after. The trial court denied the motion. We find no error.
Under OCGA § 40-5-55(a),
any person who operates a motor vehicle upon the highways or elsewhere throughout this state shall be deemed to have given consent ... to a chemical test or tests of his or her blood, breath, urine, or other bodily substances for the purpose of determining the presence of alcohol or any other drug, if arrested for any offense arising out of acts alleged to have been committed in violation of [OCGA § 40-6-391, which prohibits driving under the influence of alcohol, drugs, or other intoxicating substances].
OCGA § 40-6-392 sets forth guidelines governing such State-administered chemical testing. It also provides that the person tested "may have a physician or a qualified technician, chemist, registered nurse, or other qualified person of his own choosing administer a chemical test or tests in addition to any administered at the direction of a law enforcement officer." [FN2] And it specifies that, at the time of arrest, the arresting officer must "advise the person arrested of his rights to a chemical test or tests." [FN3]
FN2. OCGA § 40-6-392(a)(3).
FN3. Id. at (a)(4).
Information about these rights is included in the implied consent notice mandated by OCGA § 40-5-67.1. Under that provision, a law enforcement officer who requests that an individual submit to chemical testing for alcohol or drugs must read the individual an implied consent notice. [FN4] The notice furnishes information about the State-administered testing and also advises the individual of his **890 or her right to obtain additional testing. [FN5] Upon receiving this notice, the "person shall be deemed to have been properly advised of his or her rights ... and the results of any chemical test, or the refusal to submit *881 to a test, shall be admitted into evidence against such person." [FN6]
FN4. See OCGA § 40-5-67.1(b).
FN5. See id.
FN6. Id.
Kahl argues that an implied consent notice is p
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