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Leiske v. State6/3/2002
In a jury trial, Paul R. Leiske was convicted of DUI, disobeying a traffic control device, and driving without a license on his person. Leiske's motion for new trial was unsuccessful. In this appeal, Leiske contends that the trial court erred in denying his motion to suppress/motion in limine to exclude the results of a state-administered test. He argues that his consent was coerced because he was misinformed about his option to refuse the testing.
In reviewing the grant or denial of motions in limine, we must construe the evidence most favorably toward upholding the findings and judgment of the trial court. Wells v. State, 227 Ga. App. 521 (489 SE2d 307) (1997). Additionally, the trial court's findings as to disputed facts and witness credibility must be adopted unless clearly erroneous. Dooley v. State, 221 Ga. App. 245 (1) (470 SE2d 803) (1996).
Viewed in that light, the record shows that while on routine patrol, Officer Kelvin L. Walls encountered a two-car accident at the intersection of Piedmont and Roswell Roads in Atlanta. Walls directed both drivers to move to a nearby parking lot. Upon inquiry, Walls learned that Leiske was the driver at fault. Leiske told Walls that after the light in his direction of travel changed from yellow to red, he tried to stop but could not. The other driver recounted to Walls that while traveling with a green light, as she was almost through the intersection, Leiske's vehicle struck the rear of her car. Walls testified that while speaking with Leiske, he noticed "he had an aroma of alcoholic beverage coming from his person." Walls also noted that Leiske's "speech was slow, and his body movements were lethargic." When asked if he had been consuming alcohol, Leiske admitted having had a couple of drinks on his flight home from a business trip.
Walls testified that after completing his accident investigation, he asked Leiske to participate in field sobriety testing. During his recitation of the alphabet, Leiske stuttered over a few letters. On an alcosensor test, Leiske registered above the legal limit. Then, using the copy of the implied consent notice that he kept in his pocket, Walls read that notice verbatim to Leiske. After being advised of his rights, Leiske agreed to take a state-administered breath test. Walls testified that upon their arrival at the jail, he again read the implied consent notice to Leiske and obtained his consent. Officer R. J. McLean administered the Intoxilyzer 5000 test to Leiske which resulted in readings of .137 and .138.
1. Leiske's motion to dismiss the State's supplemental brief is denied.
2. Leiske contends that he was misinformed about his rights so that his consent to testing was not voluntary but was coerced within the meaning of Deckard v. State, 210 Ga. App. 421 (436 SE2d 536) (1993). He claims that a DUI suspect has a statutory right to refuse to submit to a state-administered chemical test. See Klink v. State, 272 Ga. 605, 606 (1) (533 SE2d 92) (2000). He argues that he was unable to make an informed decision with regard to submitting to the state-administered breath test, because Walls indicated that the breath test was not voluntary. See State v. Terry, 236 Ga. App. 248, 251 (511 SE2d 608) (1999) (misleading information relevant to obtaining consent may necessitate exclusion of test result).
The hearing transcript belies this argument. Despite Leiske's attempts to distort the testimony at issue, that testimony must be construed most favorably toward upholding the trial court's findings. See Wells, supra. Although when isolated from its context, a part of Walls's testimony may seem slightly confusing, it is not confusing when read as a whole. Walls testified wit
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