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Baker v. State8/3/2001
As amended December 3, 2001.
WHOLE COURT
After a jury trial, Chris Baker was convicted of driving under the influence of alcohol to the extent that he was a less safe driver. Baker appeals his conviction, arguing that the trial court improperly denied his motion in limine to exclude evidence gathered from a roadblock, erroneously admitted his alco-sensor test results, and incorrectly charged the jury on the horizontal gaze nystagmus ("HGN") evaluation. We reverse.
On appeal, "this court views the evidence in the light most favorable to support the verdict, and an appellant no longer enjoys a presumption of innocence." Dumas v. State, 239 Ga. App. 210 (1) (521 SE2d 108) (1999). Further, " here the evidence is uncontroverted and there is no issue as to witness credibility, . . . we review de novo the trial court's application of the law to the undisputed facts." State v. Becker, 240 Ga. App. 267, 268 (523 SE2d 98) (1999).
The uncontroverted evidence shows that on May 5, 2000, while working at a roadblock, Officer A. M. Wright stopped Baker and asked for his driver's license and insurance information. Officer Wright testified that he noticed that Baker's eyes were enlarged, a moderate odor of alcohol emanated from his breath, and his speech was very fast and "stutterish." Based on these observations, Officer Wright asked Baker to pull to the side of the road.
Responding to Officer Wright's instructions to recite the alphabet from "C" to "Q," Baker twice recited the alphabet from C to Z. Each time, Baker's recitation of the letters between C and Q was unintelligible. Officer Wright then told Baker to exit his vehicle and asked if he would perform several field sobriety tests. Baker agreed to do so.
The first test that Officer Wright administered to Baker was the HGN evaluation. Baker exhibited several clues of impairment. The next tests administered were the walk-and-turn test and the one leg stand test. Officer Wright testified that four indicators on the walk-and-turn test suggest alcohol impairment, and Baker exhibited at least five. On the one leg stand test, swaying and using one's arms to balance are the impairment indicators, and Baker exhibited both. Based on Baker's performance on these tests, Officer Wright concluded that Baker "was definitely under the influence of alcohol."
Officer Wright then offered Baker a preliminary breath test which he agreed to take. Despite Officer Wright's instructions to blow into the alco-sensor tube, Baker sucked on the tube instead. After Officer Wright explained the instructions again, Baker blew into the tube, and the results were positive for alcohol. Concluding that Baker was not a safe driver, Officer Wright arrested him.
1. During the hearing on Baker's motion to suppress all evidence gathered at the roadblock, Officer Wright testified that he was not present when one of his supervisors decided to implement the roadblock, and that he could not remember which of the two supervisors had made the decision. In light of this testimony and the fact that Officer Wright was the state's only witness, Baker contends that the state failed to prove the roadblock was lawful. Thus, he argues, his motion in limine seeking suppression of the evidence should have been granted. We agree.
LaFontaine v. State, 269 Ga. 251 (497 SE2d 367) (1998) articulates the factors to be considered in determining whether a roadblock is lawful. It provides,
A roadblock is satisfactory where the decision to implement the roadblock was made by supervisory personnel rather than the officers in the field; all vehicles are stopped as opposed to random vehicle stops; the delay
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