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Handschuh v. State12/1/2004
WHOLE COURT
Following his jury convictions for driving under the influence and failure to maintain a lane, Bryan Reid Handschuh appeals the denial of his motion for new trial, contending that the trial court erred in denying his motion to suppress, failing to excuse a juror for cause, and considering a GCIC printout in sentencing. Because the Georgia Supreme Court found unconstitutional that portion of the statute on which the trial court relied in admitting evidence of Handschuh's refusal to take a blood test, we reverse his conviction for DUI.
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.
(Citations, punctuation and emphasis omitted.) Brittian v. State, 257 Ga. App. 729, 730 (572 SE2d 76) (2002).
So viewed, the record demonstrates that on January 31, 2003, at approximately 5:46 a.m., a Fayette County police officer was dispatched to the scene of an automobile accident. When he arrived he saw Handschuh's overturned Ford Ranger truck approximately 200 feet off the side of the embankment of a main road. When the officer approached the vehicle, he noticed a strong odor of alcohol emanating from the truck. Handschuh, who was pinned inside the truck, repeatedly said that he was an organ donor, and asked the officer to call his parents and tell them that he loved them, but he was unresponsive to any other questions. The officer thought that Handschuh might have a head injury or might be intoxicated.
After emergency personnel arrived and freed Handschuh, he was transported to a local hospital. Although externally he did not appear to have any serious injuries, the EMTs told the officer that he was not responding to pain stimuli in his lower extremities. After Handschuh was transported to the hospital, the officer investigated the accident site and recovered from the truck an opened bottle of Crown Royal liquor and several unopened cans of beer from the truck. Handschuh's truck was equipped with an ignition interlock device.
The officer went to the hospital to question Handschuh, and noticed the odor of alcohol on Handschuh's breath. The officer also noted that Handschuh's speech was slurred, he was combative with the EMT and hospital personnel, and he repeatedly demanded to be released from the hospital. The officer testified that he "told [Handschuh] about his injuries and the seriousness of his injuries, and I said I've got to read something to you. It's called Implied Consent notice, suspects age 21 and over." He then read Handschuh the implied consent notice. Handschuh did not respond to the officer, and when a technician from the hospital came to draw his blood, he refused to cooperate. The officer told Handschuh that his actions constituted a refusal. Handschuh was arrested six days later and charged by accusation with driving under the influence , failure to maintain a lane, and violating the open container law.
Before trial, he filed a motion in limine and to suppress all evidence of his refusal to submit to the blood test. The trial court denied the motion and admitted evidence of the refusal, finding that,<
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