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State v. Pierce3/12/2004
The State of Georgia appeals from the trial court's order granting Justin Pierce's motion to suppress evidence and statements obtained at the time of his arrest for speeding, in violation of OCGA § 40-6-181, and driving under the influence, in violation of OCGA § 40-6-391(a)(1) and (a)(5).
On March 27, 2002 at approximately 11:30 p.m., Officer Acevedo of the Gwinnett County Police Department observed Pierce's car traveling at a high rate of speed on Interstate 85 while making multiple lane changes. Acevedo paced the car at between 102 and 108 mph in a 65-mph zone. Although the officer testified that the speedometer in his patrol car had been regularly checked, he did not produce "any evidence of calibration" at the hearing on the motion to suppress.
Acevedo pulled the car over. When he asked Pierce for his driver's license, he detected an odor of alcohol, which he believed was coming from Pierce's breath. At this point, the officer asked Pierce to step out and move to the rear of his car. Acevedo then radioed dispatch to send a DUI task force unit to the scene. Officer David O'Hare with the Gwinnett County DUI Task Force responded to the call.
When O'Hare arrived at the scene, Pierce was standing outside his car and admitted that he had been driving "about 100." Pierce had explained to Acevedo that he was responding to an emergency call from his girlfriend saying that she was having a problem with her ex-husband harassing her. O'Hare observed that Pierce's eyes were watery and detected a moderate odor of alcohol. Pierce admitted that he had had "a couple of drinks," explaining that he meant two to three beers. Pierce's face appeared flushed.
O'Hare then walked away from Pierce toward Pierce's open car door, saying, "I'm just going to shut your car door so some other drunk doesn't take it off." After asking Pierce his age, O'Hare left him standing alone at the back of his car, stating, "Just hang tight with your car. We'll be with you in a minute." O'Hare then had a brief conversation with Acevedo, who was standing some distance away. When O'Hare returned to Pierce, he asked him to take some field *234 sobriety tests to "make sure you are safe to drive." He then admonished Pierce, "And safe to drive does not mean safe at 100 miles per hour. Keep that in mind."
O'Hare administered the horizontal gaze nystagmus test, the walk-and-turn test, the one-leg stand test, and an alco sensor test. He testified that he had to explain the instructions to the tests several times before Pierce seemed to understand. Based upon his observations from these tests, O'Hare formally placed Pierce under arrest.
The state contends that the trial court erred in suppressing evidence obtained during this traffic stop. Generally, our review of a trial court's ruling on a motion to suppress is guided by three principles:
**727 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 it. 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.
(Citation and punctuation omitted.) Tate v. State, 264 Ga. 53, 54, 440 S.E.2d 646 (1994). But to the extent that the facts relevant to the trial court's ruling are undisputed, this Court's application of the law to the undisputed facts is de novo. Vansant v. State, 264 Ga. 319, 320(1), 443 S.E.2d 474 (1994).
1. The state first argues that the trial court erred
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