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Howell v. State3/24/2004
Lance Hugh Howell appeals his convictions of driving under the influence of alcohol with an unlawful blood-alcohol concentration and of being in possession of an open container of an alcoholic beverage while operating a motor vehicle. He contends that the trial court erred in (1) denying his motion to suppress the results of a state-administered breath test, (2) instructing the jury that he had the *481 burden of showing any human errors in the administration or interpretation of field sobriety evaluations, and (3) denying his plea of double jeopardy. Finding merit in Howell's first claim of error, we reverse his convictions.
"On review, this Court will uphold a trial court's findings as to disputed facts in a motion to suppress unless clearly erroneous, whereas the trial court's application of the law to undisputed facts is subject to de novo **548 appellate review. [Cit.]" [FN1] In this case, the facts are not disputed.
FN1. State v. Langlands, 276 Ga. 721(1), 583 S.E.2d 18 (2003).
State's evidence showed that at around 1:00 a.m. on February 8, 2002, Cherokee County Deputy Sheriff Carl Pope was on patrol when he observed Howell operating a truck in violation of various rules of the road. As a result, Pope initiated a traffic stop. Upon speaking to Howell, Pope detected a strong odor of an alcoholic beverage. After Howell admitted to Pope that he had consumed some beer, Pope conducted a DUI investigation by having Howell blow into an alco-sensor machine and perform various field sobriety tests. Pope thereupon concluded that Howell was too impaired to operate a motor vehicle safely and arrested him for DUI. While conducting an inventory of Howell's truck, Pope found an open can of beer.
Pope gave Howell implied consent warnings and asked him to submit to a state-administered breath test. Howell said no. Pope, however, testified that through his training and experience, he has "always been taught to put them [DUI arrestees] in front of the machine to consider that a refusal. And I don't take the answer no on the scene." Consequently, Pope placed Howell in his patrol car and transported him to the Cherokee County Adult Detention Center where he asked City of Holly Springs Police Officer Rodney Campbell to administer an Intoxilyzer 5000 test. Campbell did so, and Howell's breath samples registered 0.179 and 0.180 grams. Although Campbell could not recall his conversation with Howell, he testified that he normally advises suspects that the Intoxilyzer 5000 is a state test, that they need to blow into the machine, and that "if they are not blowing, then that's consider[ed] a refusal." Campbell did not recall that he deviated from that protocol in this case or that Howell refused to cooperate.
1. (a) In reliance on State v. Highsmith, [FN2] Howell first contends that the trial court erred in denying his motion to suppress the results of the Intoxilyzer breath test. We agree.
FN2. 190 Ga.App. 838, 380 S.E.2d 272 (1989).
In Highsmith, the arresting officer read the defendant implied consent warnings and asked him to submit to a blood test. The officer *482 testified that the defendant initially expressed reluctance to having needles stuck in him and refused testing, but that he engaged the defendant in further conversation and persuaded him to consent. Applying a "totality of the circumstances" test as would be proper in determining whether a confession is freely and voluntarily given, the trial court granted Highsmith's motion to suppress the results of the blood test. We reversed.
We recognized in Highsmith that in Georgia, the state may constitutionally take a blood sample from a defendant without his consent and that our implied consent statute thus grants a suspect an opportunity, not afforded him by our co
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