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Furcal-Peguero v. State5/21/2002
Following a bench trial on stipulated facts, the State Court of Cobb County convicted Rafael Antonio Furcal-Peguero of driving under the influence, OCGA § 40-6-391 (a) (5). Furcal appeals, contending the trial court erred in denying his motion to suppress the result of a breath test. Finding no error, we affirm.
Before trial, the parties agreed that the arresting officer read Furcal the implied consent notice only in English, despite knowing that Furcal's native language was Spanish and that a telephonic translation service was immediately available. Furcal moved to suppress the result of the State-administered breath test on the basis that the implied consent notice was not conveyed to him as required by law. At trial, Furcal conceded the issue is controlled adversely to him by State v. Tosar, in which we held that the implied consent notice does not have to be translated into Spanish for a Spanish-speaking person. 180 Ga. App. 885, 888 (350 SE2d 811) (1986). Furcal argued, however, that State v. Tosar should be overruled as unconstitutional or modified to address situations in which translation services are instantly available to the arresting officer. Reserving his challenge to the evidence of his blood alcohol concentration, Furcal stipulated to certain facts, including that he was driving with an unlawful blood alcohol level and submitted his case to the trial court for decision. The court found Furcal guilty, implicitly denying his motion to suppress under State v. Tosar.
Although the trial court and the parties characterized the proceeding below as a bench trial on stipulated facts, we are concerned that in many material respects the court and the parties considered the proceeding a conditional guilty plea, designed to preserve for appeal Furcal's legal challenge to State v. Tosar, 180 Ga. App. at 888. In Hooten v. State, 212 Ga. App. 770, 775 (1) (442 SE2d 836) (1994), we overruled Mims v. State, 201 Ga. App. 277, 279 (410 SE2d 824) (1991), and disallowed the conditional guilty plea procedure. See Barber v. State, 231 Ga. App. 176 (2) (498 SE2d 758) (1998); Martin v. State, 214 Ga. App. 388 (448 SE2d 57) (1994). Ordinarily, a defendant waives any error in the denial of his motion to suppress by pleading guilty; therefore, viewing Furcal's conviction as arising from a guilty plea would preclude this Court from reviewing the denial of his motion to suppress. Thompson v. State, 240 Ga. App. 539 (2) ( SE2d ) (2000).
But Furcal expressly proceeded to trial on stipulated facts under the authority of Richards v. State, 269 Ga. 483 (500 SE2d 581) (1998). Under Richards v. State, a defendant may stipulate to facts that would be demonstrated at trial (such as the result of a breath test) and may acknowledge that the stipulated facts would support a conviction of the crime charged on the condition that he may challenge specified pretrial rulings on appeal (such as the denial of his motion to suppress the result of the breath test). Id. at 485-486. This procedure is particularly appropriate in this case, where the trial court was not required to resolve any disputed facts in ruling on the pretrial issues. Cf. id. at 483-484 (trial court was required to resolve disputed facts regarding reading of implied consent notice in denying motion to suppress). Thus, based on Richards v. State, we consider Furcal's legal challenge on the merits. We urge trial courts, however, not to blur the important distinctions between accepting a guilty plea and finding a defendant guilty following a bench trial.
Where the evidence is uncontroverted and no question regarding the credibility of witnesses is presented, we review de novo the trial court's application of the law to undisputed fact
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