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Moody v. State6/15/2005
RUFFIN, C. J., JOHNSON, P. J., BARNES, J.
Howard Moody appeals from his conviction for speeding and driving under the influence of alcohol in violation of OCGA § 40-6-391 (a) (5), with a blood alcohol level exceeding .08. Moody contends the trial court should have granted his motion to suppress because there was insufficient probable cause to arrest and the police officer should have given him a Miranda warning before administering field sobriety tests. Moody also contends the trial court erred by admitting evidence of three previous DUI convictions.
1. We must abide by the following principles when reviewing a trial court's order denying a motion to suppress the evidence:
First, the 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.) State v. Hester, 268 Ga. App. 501, 502 (602 SE2d 271) (2004).
Viewed in its proper light, the evidence shows that on October 31, 2002 at 12:55 a.m.the arresting officer observed Moody speeding and verified with his laser gun that he was traveling 56 mph on a street with a posted speed limit of 35 mph. The officer pulled into traffic behind Moody and stopped him for speeding. The officer asked where Moody was coming from, and he replied that he had been at a bar where he consumed five drinks. While talking with Moody, the officer noticed that his eyes were bloodshot and watery, that his speech was slow, and he smelled of alcohol The officer then asked Moody to step out of the car and administered several field sobriety tests. According to the officer, the horizontal gaze nystagmus test revealed four out of six clues, the walk and turn test revealed five out of eight clues, and the one leg stand test showed four out of four clues indicating Moody was under the influence of alcohol. After the alcosensor also revealed the presence of alcohol, the officer placed Moody under arrest for DUI based on his opinion that Moody was under the influence of alcohol to the extent he was a less safe driver. After hearing the implied consent notice, Moody consented to a breath test, which revealed blood alcohol levels of .094 and .101.
(a) Moody argues that our opinion in State v. Batty, 259 Ga. App. 431 (577 SE2d 98) (2003), required the trial court to find that insufficient probable cause supported his arrest. We find no merit in this argument because in Batty we addressed the propriety of the trial court's grant of a motion to suppress and held that the standard of review required us to defer to the trial court's findings of fact and credibility. Id. at 432. The trial court specifically found that the arresting officer's credibility was lacking and evidence that the defendant's eyes were bloodshot "was never placed before the trial court for its consideration." Id. Thus, our opinion in Batty is distinguishable and did not require the trial court to reach a different result.
As there was sufficient evidence of probable cause to arrest, the trial court did not err by denying this ground of Moody's motion to suppress. See Temples v. State, 228 Ga. App. 228, 231 (491 SE2d 444) (1997).
(b) We also find no merit in Moody's assertion that the officer should have given him Miranda warnings before administering the field sob
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