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Oliver v. State7/1/2004
In this second appearance of this case before this Court, Gregory Lavon Oliver appeals his bench trial conviction for driving under the influence to the extent that he was less safe to drive, contending that the trial court erred by denying his motion in limine to exclude the results of a State-administered blood test because: (1) his implied consent warnings were untimely administered and (2) our Supreme Court's recent opinion in Cooper v. State [FN1] requires reversal. For the *291 reasons set forth below, we affirm.
FN1. Cooper v. State, 277 Ga. 282, 587 S.E.2d 605 (2003).
In reviewing denial of a motion to suppress or in limine, we apply the following three principles[.] First, when a motion to suppress is heard by the trial judge, that judge sits as the trier of facts. The trial judge hears the evidence, and his findings based upon conflicting evidence are analogous to the verdict of a jury and should not be disturbed by a reviewing court if there is any evidence to support them. Second, the trial court's decision with regard to questions of fact and credibility must be accepted unless clearly erroneous. Third, the reviewing court must construe the evidence most favorably to the upholding of the trial court's findings and judgment.
**775 (Citations, punctuation and emphasis omitted.) Brittian v. State. [FN2]
FN2. Brittian v. State, 257 Ga.App. 729-730, 572 S.E.2d 76 (2002).
The majority of the relevant facts in this case were set forth in our prior opinion. There, we found as follows:
The undisputed evidence shows that Officer Arlen White responded to a reported motorcycle wreck. When he arrived at the scene, Officer White saw Oliver standing over the motorcycle. Oliver had lacerations on his face and hands, and, although he had been driving the motorcycle, he told White that he did not remember the wreck. White testified that he immediately detected a strong smell of an alcoholic beverage coming from Oliver and noticed that Oliver's eyes were red and glassy. White asked Oliver how much he had to drink, and Oliver responded that he did not remember.
Approximately two minutes later, paramedics arrived and started treating Oliver's injuries in the back of the ambulance. While they were doing so, White advised Oliver of his implied consent rights relating to State-administered alcohol tests and further informed Oliver of his Miranda rights. Despite these warnings, White testified that he had not yet determined that Oliver was under the influence of alcohol to the extent that he was less safe to drive. Accordingly, White had not yet decided whether to arrest Oliver for driving under the influence.
After being informed of these rights, Oliver consented to taking a breath test and field sobriety tests. Thus, after Oliver was treated by the paramedics for his injuries, White *292 administered a horizontal gaze nystagmus test and walk and turn test. Oliver told White that nothing would hinder his performance on the tests, but Oliver repeatedly failed to follow White's instructions during the horizontal gaze nystagmus test and performed unsatisfactorily on the walk and turn test. Based on Oliver's poor performance, the odor of alcohol, the wreck, and the fact that Oliver did not remember the wreck or how much he had to drink, White arrested him for driving under the influence to the extent that he was a less safe driver.
(Punctuation and footnote omitted.) State v. Oliver. [FN3]
FN3. State v. Oliver, 261 Ga.App. 599, 600, 583 S.E.2d 259 (2003).
In addition to these facts, the record further shows that, following the arrest, a friend of Oliver's was called to come to the scene and pick up Oliver's motorcycle. After Oliver's friend arrived approximately an hour later, Officer White escorted Olive
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