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Polizzotto v. State3/28/2001
Jeffrey Polizzotto was charged with driving under the influence of alcohol ("DUI") to the extent that he was a less safe driver, OCGA § 40-6-391 (a) (1), and "laying drags" in violation of OCGA § 40-6-251. Prior to trial, Polizzotto filed a motion to suppress evidence of his field sobriety evaluations based on alleged Miranda violations. The trial court denied the motion to suppress. At the conclusion of a jury trial, Polizzotto was convicted of both offenses. He appeals, arguing that the trial court erred by denying the motion to suppress, by instructing the jury during the evidentiary phase of the trial, and by improperly charging the jury on the horizontal gaze nystagmus test. We affirm.
Viewed in the light most favorable to the verdict, the evidence shows that at approximately 12:40 a.m. on June 19, 1999, Deputy David Hardwick of the Rockdale County Sheriff's Department observed a vehicle driven by Polizzotto stopped at an intersection. Deputy Hardwick testified that there was smoke coming from the vehicle and that the rear tires were spinning while the vehicle was stopped, causing it to "gyrate." Deputy Hardwick initiated a traffic stop. He approached the vehicle, and Polizzotto began apologizing and mentioning the names of "political persons in the county and in the city," who he knew, including the city manager of Conyers and a county commissioner of Rockdale County. The deputy noticed the smell of alcohol coming from inside the vehicle. Deputy Hardwick asked the defendant if he had been drinking, and Polizzotto replied that he had consumed "a couple of drinks with dinner."
The officer then administered field sobriety tests. First, while Polizzotto remained in the car, Deputy Hardwick administered the horizontal gaze nystagmus test, during which he observed a "lack of smooth pursuit" in Polizzotto's eyes, which indicated possible impairment. Next, the deputy asked Polizzotto to blow into a portable alco-sensor, and the instrument indicated that the defendant had consumed alcohol. Deputy Hardwick returned to his vehicle to summon his supervisor to the scene, because Polizzotto had dropped the names of several political figures. Deputy Hardwick told his supervisor over the radio that the defendant was "going to be 29," which is a police code for DUI.
After speaking with his supervisor, Deputy Hardwick asked Polizzotto to exit the vehicle for additional field sobriety evaluations. The deputy directed Polizzotto to perform the "one leg stand" test, during which he observed that Polizzotto swayed, raised his arms, and had some difficulty counting to thirty, which were "clues" that the defendant was an impaired driver. Next, Polizzotto performed the "walk and turn" test. Again, Deputy Hardwick observed clues in Polizzotto's performance that indicated impairment.
Deputy Hardwick testified that based on the field sobriety tests, he formed an opinion that Polizzotto was "an impaired, less safe driver." The deputy placed Polizzotto under arrest and read him the implied consent notice. Polizzotto responded that he would like to speak with an attorney before deciding whether to submit to breath testing, but Deputy Hardwick informed him that he did not have the right to have an attorney present for a breath test. The deputy read the implied consent notice for a second time, and Polizzotto agreed to submit to the test; however, when they reached the jail, Polizzotto refused to take the test.
1. First, Polizzotto argues that the trial court erred in denying his motion to suppress. He contends that Deputy Hardwick had decided to arrest him at the time the deputy spoke to his supervisor over the radio, and, therefore, evidence of subsequent field sobriety tests s
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