FOURTH DIVISION
DOYLE, P. J.,
MILLER and DILLARD, JJ.
NOTICE: Motions for reconsideration must be
physically received in our clerk’s office within ten
days of the date of decision to be deemed timely filed.
http://www.gaappeals.us/rules/
November 12, 2014
In the Court of Appeals of Georgia
A14A1040. CHARALES v. THE STATE. DO-038
DOYLE, Presiding Judge.
Following a bench trial, Robert Charales a/k/a Robert Chakales was found
guilty of driving under the influence to the extent it was less safe to drive (“DUI less
safe”)1 and driving under the influence with an unlawful alcohol concentration (“DUI
per se”).2 Charales appeals the denial of his subsequent motion for new trial, arguing
that the trial court erred by denying his pretrial motion to suppress because (1) the
checkpoint at which he was stopped was unlawful, and (2) police failed to timely read
him the implied consent notice. Because the State failed to demonstrate that the law
1
OCGA § 40-6-391 (a) (1).
2
OCGA § 40-6-391 (a) (5).
enforcement agency’s checkpoint program had an appropriate primary purpose, we
reverse.
When reviewing a trial court’s ruling on a motion to suppress, the appellate
court follows three fundamental principles.
First, when a motion to suppress is heard by the trial judge, that 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 them. 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.
These principles apply equally whether the trial court ruled in favor of
the State or the defendant.3
So viewed, the evidence shows that on March 14, 2009, Charales was arrested
and charged with DUI less safe and DUI per se following his inability to properly
perform field sobriety tests at a checkpoint implemented by the Atlanta Police
3
(Citation and punctuation omitted.) Brown v. State, 293 Ga. 787, 803 (3) (b)
(2) (750 SE2d 148) (2013), quoting Miller v. State, 288 Ga. 286, 286-287 (1) (702
SE2d 888) (2010).
2
Department (“APD”).4 With Charales’s consent, police administered two Intoxilyzer
5000 tests, which indicated blood alcohol levels of .206 and .215. Charales was
charged with DUI per se and DUI less safe. Prior to trial, he filed a motion to
suppress, arguing that the checkpoint was unlawful and the police failed to timely
read him the implied consent notice, and the trial court denied the motion after an
evidentiary hearing.5 Following a stipulated bench trial, the trial court found Charales
guilty on both counts, and it merged the less safe count into the per se count. The trial
court denied Charales’s subsequent motion for new trial, and this appeal followed.6
1. Charales argues that the trial court erred by denying his motion to suppress
because the State failed to prove that APD’s checkpoint was lawful. We agree.
4
The officer administered the field sobriety tests after noticing that Charales
was unable to place his vehicle in park, had slurred speech and bloodshot eyes, and
emanated a strong odor of alcohol; Charales denied that he had been drinking.
5
Although the order denying the motion to suppress states that the motion was
based on Charales’s arguments regarding the implied consent notice, the parties also
presented evidence and argument regarding the legality of the checkpoint, and the
trial court orally ruled at the suppression hearing that the checkpoint was proper.
6
We note that a new superior court judge heard and ruled upon the motion for
new trial after the judge who presided over the motion to suppress hearing and the
bench trial retired.
3
“[W]here a defendant challenges his initial stop at a police checkpoint by way
of a motion to suppress, the State bears the burden of proving that the seizure was
constitutional.”7 In Brown v. State,8 the Supreme Court of Georgia reaffirmed the five
requirements that the State must show for a checkpoint to be upheld as constitutional
as required by the United States Supreme Court in LaFontaine v. State9:
(1) the decision to implement the [checkpoint] was made by supervisory
personnel rather than the officers in the field; (2) all vehicles were
stopped as opposed to random vehicle stops; (3) the delay to motorists
was minimal; (4) the [checkpoint] operation was well identified as a
police checkpoint; and (5) the “screening” officer’s training and
experience was sufficient to qualify him to make an initial determination
as to which motorists should be given field tests for intoxication.10
In addition, in City of Indianapolis v. Edmond,11 the United States Supreme Court
“supplemented LaFontaine’s test for evaluating the implementation and operation of
7
Brown, 293 Ga. at 799 (2) (f).
8
Id.
9
269 Ga. 251 (497 SE2d 367) (1998).
10
(Punctuation omitted.) Brown, 293 Ga. at 793 (2) (b), quoting LaFontaine,
269 Ga. at 253 (3).
11
531 U. S. 32 (121 SCt 447, 148 LE2d 333) (2000).
4
the particular checkpoint with a distinct requirement focused on the law enforcement
agency’s checkpoint program.”12
At a minimum, the State must show that the law enforcement agency’s
checkpoint program had an appropriate primary purpose other than
ordinary crime control – a purpose examined at that programmatic
level, rather than by trying to determine the motives of the supervisor
who implemented and the officers who conducted the particular
checkpoint at issue.13
In this case, pretermitting whether the checkpoint established by the APD met
the five LaFontaine requirements, the State has failed to prove that the checkpoint
program had an appropriate primary purpose.
Sergeant Zachery Wilson testified at the suppression hearing that he, acting as
a field supervisor, called for the checkpoint that evening where Charales was stopped
and arrested. According to Sergeant Wilson, the purpose of that particular checkpoint
was not crime suppression, but rather to “check for driver’s license[s], seat belts[,
headlights,] and safety violations.” There was, however, no testimony nor any written
12
Williams v. State, 293 Ga. 883, 891 (3) (b) (750 SE2d 355) (2013), citing
Brown, 293 Ga. at 798-799 (2) (e).
13
(Punctuation omitted; emphasis supplied.) Brown, 293 Ga. at 799 (2) (f),
quoting Edmond, 531 U. S. at 48 (III).
5
evidence admitted regarding the APD’s checkpoint policy or program as a whole. As
the Supreme Court of Georgia recently explained,
a finding that a particular checkpoint has a primary purpose other than
ordinary crime control is not enough to satisfy the Edmond requirement.
Edmond requires an examination of the policy purpose of the
checkpoints, viewed at the programmatic level, to ensure that an
agency’s checkpoints are established primarily for a lawful and focused
purpose like traffic safety rather than to detect evidence of ordinary
criminal wrongdoing.”14
Because the State failed to show that the APD’s “‘checkpoint program had an
appropriate primary purpose other than ordinary crime control’ when viewed at the
programmatic level[,] . . . we therefore must conclude that the checkpoint at which
[Charales] was stopped violated the Fourth Amendment.”15 Thus, the trial court erred
by denying Charales’s motion to suppress.
2. Based on our holding in Division 1, we need not address Charales’s second
enumeration.
Judgment reversed. Miller and Dillard, JJ., concur.
14
(Punctuation omitted; emphasis in original.) Williams, 293 Ga. at 891 (3) (b).
15
Id. at 893 (3) (b), quoting Brown, 293 Ga. at 799 at (2) (e).
6