FIFTH DIVISION
DILLARD, P. J.,
REESE and BETHEL, 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
January 23, 2017
In the Court of Appeals of Georgia
A16A1865. MCKIBBEN v. THE STATE.
DILLARD, Presiding Judge.
Following a stipulated bench trial, Kirby McKibben was convicted of driving
under the influence (per se), driving under the influence (less-safe), driving without
headlights, and failure to maintain lane.1 McKibben appeals from his convictions by
challenging the trial court’s denial of his motion to suppress evidence obtained in a
warrantless blood test. Specifically, McKibben argues that he did not freely and
voluntarily consent to the blood test under the standard set forth recently by our
Supreme Court in Williams v. State.2 But because the trial court properly considered
1
McKibben’s convictions for DUI less-safe and failure to maintain lane were
merged for purposes of sentencing with his conviction for DUI per se.
2
296 Ga. 817 (771 SE2d 373) (2015).
the totality of the circumstances in finding that McKibben consented to the blood test,
we affirm.
On appeal from a ruling on a motion to suppress, we construe the evidence
“most favorably to affirming the trial court’s factual findings and judgment.”3 Indeed,
the trial court’s decision with regard to questions of fact and credibility must be
accepted unless clearly erroneous.4 And here, the parties appear to agree on all the
relevant facts and evidence. Consequently, we review the trial court’s application of
the law to the facts de novo, “examining the entire record and making an independent
determination of the ultimate issue of voluntariness.”5
So viewed, the evidence presented at the hearing on McKibben’s motion to
suppress establishes that Holly Springs police dispatch received a call about a
possibly intoxicated driver in a maroon Scion, and information indicating the
vehicle’s direction of travel. These particulars were then broadcast over the police
radio and, shortly thereafter, a Holly Springs sergeant observed a vehicle matching
3
Brooks v. State, 285 Ga. App. 624, 626 (647 SE2d 328) (2007).
4
McAllister v. State, 325 Ga. App. 583, 583 (754 SE2d 376) (2014).
5
State v. Fulghum, 261 Ga. App. 594, 594 (1) (583 SE2d 278) (2003)
(punctuation omitted).
2
the description “swerving from left to right . . . [and] crossing one time over the
center divider[.]” After initiating a traffic stop, the sergeant approached the driver,
McKibben, and immediately smelled a strong odor of an alcoholic beverage coming
from inside the vehicle. The sergeant also noticed that McKibben’s eyes were glazed
and his speech was “thick-tongued.” According to the sergeant, McKibben’s body
reeked of an alcoholic beverage and he appeared off balance when exiting the vehicle.
Nevertheless, McKibben adamantly denied consuming alcohol and declined to take
any field-sobriety evaluations.
McKibben’s denials notwithstanding, the sergeant placed him under arrest on
suspicion of driving under the influence. McKibben was also read the implied-
consent notice for suspects 21 or over from a prepared card, which stated as follows:
Georgia law requires you to submit to state administered chemical test[s]
of your blood, breath, urine, or other bodily substances for the purpose
of determining if you are under the influence of alcohol or drugs. If you
refuse this testing[,] your Georgia driver’s license or privilege to drive
on the highways of this state will be suspended for a minimum period of
one year. Your refusal to submit to that required testing may be offered
into evidence against you at trial. If you submit to testing and the results
indicated an alcohol concentration of 0.08 grams or more, your Georgia
driver’s license or privilege to drive on the highways of this state may
be suspended for a minimum period of one year. After first submitting
3
to the required state test[,] you are entitled to additional chemical tests
of your blood, breath, urine, or other bodily substances at your own
expense and from qualified personnel of your own choosing. Will you
submit to the state administered chemical test of your blood under the
implied consent law?6
McKibben replied “yes,” but did not ask any questions about the implied-consent
notice or his rights, did not request an attorney, and never indicated an unwillingness
to have the blood sample taken. The sergeant testified that (1) neither he nor
McKibben ever raised their voices during this encounter, (2) their conversation was
polite, and (3) he did not threaten McKibben or make him any promises in exchange
for giving consent.
Thereafter, the sergeant transported McKibben to a fire station less than one
mile away. Once they arrived at the station, McKibben’s handcuffs were removed and
he submitted to a blood draw by a qualified firefighter. According to the sergeant,
McKibben understood what was going on, appeared intelligent and well-spoken, and
6
The specific language of this notice appears identical in all relevant aspects
to the text contained in OCGA § 40-5-67.1 (b) (2).
4
“was very cooperative throughout the entire encounter.” The blood test ultimately
showed that McKibben’s blood-alcohol level was above the legal limit.7
McKibben later moved to suppress the results of his blood test, arguing that his
acquiescence to the request for a blood draw, following a reading of the implied-
consent notice, did not constitute actual consent. The trial court disagreed.
Specifically, the court concluded that, in light of Williams v. State,8 and based on “a
totality of the circumstances,” McKibben voluntarily consented to having his blood
drawn.9 In doing so, the court noted that McKibben agreed to take the test after
having been read his implied-consent notification; his blood was taken within one
hour of the arrest and therefore was not the result of a prolonged detention; the
sergeant did not threaten or intimidate McKibben, nor did he promise McKibben
anything; the sergeant did not withhold food or drink or refuse McKibben use of the
7
See OCGA § 40-6-391 (a) (5) (“A person shall not drive or be in actual
physical control of any moving vehicle while[ ] . . . [t]he person’s alcohol
concentration is 0.08 grams or more at any time within three hours after such driving
or being in actual physical control from alcohol consumed before such driving or
being in actual physical control ended[.]”).
8
296 Ga. 817 (771 SE2d 373) (2015).
9
See id. at 821 (“Whether a warrantless blood test of a drunk-driving suspect
is reasonable must be determined case by case based on the totality of the
circumstances.” (punctuation omitted)).
5
restroom; the sergeant removed McKibben’s handcuffs to allow the firefighter to
withdraw the blood; and McKibben willingly interacted with the firefighter collecting
his blood sample and never indicated that the blood draw was not freely and
voluntarily given.
On appeal, McKibben challenges the trial court’s denial of his motion to
suppress. Although McKibben acknowledges that he was read the implied-consent
notice, acquiesced to the blood draw, and submitted to the test without resistence, he
nevertheless contends that, under Williams, this is insufficient to show actual consent
and render the search constitutionally valid. McKibben further argues that the
implied-consent notice fails to inform defendants that they may refuse to comply and
that the test results could be used against them in a criminal prosecution, thus
negating any voluntary consent.10 We disagree as to each of these contentions.
10
Although McKibben challenges the implied-consent statute as being
coercive, he has never directly challenged the constitutionality of the statute, and the
trial court therefore did not address any constitutional concerns. Thus, we can neither
transfer the matter nor rule on the constitutionality of the statute. See Kendrick v.
State, 335 Ga. App. 766, 770 n.3 (782 SE2d 842) (2016). And we take this
opportunity to, once again, observe that our Supreme Court has previously upheld the
implied-consent statute against a constitutional challenge much like the one posited
by McKibben. See Klink v. State, 272 Ga. 605, 606 (1) (533 SE2d 92) (2000); see
also Kendrick, 335 Ga. App. at 770 n.3 (making the same observation). Additionally,
as we recently recognized in Kendrick, 335 Ga. App. at 770 n.3, although subsequent
development of the law may have substantially eroded Klink’s analytical foundation,
6
Historically, we considered a defendant’s affirmative response to the reading
of the implied-consent notice as “sufficient to allow a search of his or her bodily
fluids without further inquiry into the validity of the defendant’s consent.”11
However, in Williams, our Supreme Court “rejected this per se rule automatically
equating an affirmative response to the implied consent notice with actual consent to
compare Klink, 272 Ga. at 606 (1) (holding based in part on observation that “[t]he
right to refuse to submit to state administered testing is not a constitutional right, but
one created by the legislature”), with Williams, 296 Ga. at 819-20 (holding that
Fourth Amendment requires actual consent in absence of warrant or other exceptions
to warrant requirement), and Birchfield v. North Dakota, __ U.S. __ (V) (C) (3), (VI)
(136 SCt 2160, 195 LE2d 560) (2016) (holding that breath tests, but not blood tests,
may be administered as a search incident to arrest for drunk driving, but
acknowledging that searches are reasonable when consent is obtained, although
“motorists cannot be deemed to have consented to submit to a blood test on pain of
committing a criminal offense”), it nevertheless remains binding authority over this
Court unless and until it is overturned by our Supreme Court. See GA. CONST., art. VI,
§ VI, ¶ VI (1983) (“The decisions of the Supreme Court of Georgia shall bind all
other courts as precedents.”); Whorton v. State, 321 Ga. App. 335, 339 (1) (741 SE2d
653) (2013) (holding that “vertical stare decisis dictates that we faithfully adhere to
the precedents established by the Supreme Court of Georgia”); Bryan A. Garner, et
al., THE LAW OF JUDICIAL PRECEDENT 155 (“When dealing with binding vertical
precedent, a court has no room to decide how much weight or value to give each
case.”).
11
Kendrick, 335 Ga. App. at 769; see, e.g., Meiklejohn v. State, 281 Ga. App.
712, 714 (637 SE2d 117) (2006); State v. Lewis, 233 Ga. App. 390, 392 (1) (504
SE2d 242) (1998).
7
a search within the meaning of the Fourth Amendment.”12 Now, we are charged
instead with conducting “a case-by-case analysis, considering the totality of the
circumstances.”13
Thus, McKibben is correct that, under Williams, the results of a warrantless
blood test are subject to suppression unless the State establishes that the suspect
freely and voluntarily consented to the test.14 And a suspect’s mere acquiescence
under the implied-consent notice is not enough to render the search constitutionally
valid.15 That said, we have previously cautioned that Williams should not be read as
imposing “a per se rule that the State must always show more than consent under the
implied consent statute.”16 Rather, we take our Supreme Court at its word when it
instructed trial courts to “review the totality of the circumstances in determining
12
Kendrick, 335 Ga. App. at 769; see also Williams, 296 Ga. at 821-22.
13
Kendrick, 335 Ga. App. at 769; see also Williams, 296 Ga. at 821-22.
14
296 Ga. at 821-22.
15
See id. at 822 (“[W]hat the cases seem to indicate is that mere compliance
with statutory implied consent requirements does not, per se, equate to actual, and
therefore voluntary, consent on the part of the suspect so as to be an exception to the
constitutional mandate of a warrant.”); Kendrick, 335 Ga. App. at 769 (“Mere
acquiescence to the authority asserted by a police officer cannot substitute for free
consent.” (punctuation omitted)).
16
Kendrick, 335 Ga. App. at 771.
8
consent.”17 Accordingly, an affirmative response to the question posed by the
implied-consent language “may be sufficient for a trial court to find actual consent,
absent reason to believe the response was involuntary.”18 To put it plainly, in
determining the demarcation line between actual consent and coercion, context is
crucial. Thus, in order to ascertain whether a suspect freely and voluntarily consented
to the test, the trial court must consider the totality of the circumstances surrounding
his consent, including (but not limited to) whether there was any threat or coercion
by the officer; whether the suspect was unable to give valid consent due to (for
example) his youth or lack of education; and whether a reasonable person would have
felt free to decline the officer’s request.19
In this case, as in Kendrick, the evidence simply does not show that “the
officers used fear, intimidation, threat of physical punishment, or lengthy detention
17
Id.
18
Id. at 771-72.
19
See id. at 769, citing Schneckloth v. Bustamonte, 412 U.S. 218, 228 (II) (B)
(93 SCt 2041, 36 LE2d 854) (1973); State v. Austin, 310 Ga. App. 814, 817-18 (1)
(714 SE2d 671) (2011); Cuaresma v. State, 292 Ga. App. 43, 47 (2) (663 SE2d 396)
(2008); State v. Durrence, 295 Ga. App. 216, 218 (671 SE2d 261) (2008).
9
to obtain the consent.”20 Nor does McKibben argue that youth, lack of education, or
low intelligence somehow negated the voluntariness of his consent.21 Rather,
McKibben argues that he did not freely and voluntarily consent to the blood test
because (1) the language of the implied-consent notice made him feel as though he
had no choice but to acquiesce and (2) he was not informed that his blood-test result
could be used against him in a criminal prosecution. But we have already rejected
these arguments in other cases.22 Indeed, as we have previously explained, while
knowledge of the right to refuse consent is one factor to be taken into account, “the
government need not establish such knowledge as the sine qua non of an effective
consent.”23
Here, the record shows that McKibben gave an affirmative answer to the
question posed by the implied-consent language, and he never attempted to change
20
Kendrick, 335 Ga. App. 769 (punctuation omitted).
21
See id.
22
See id. at 769-71 (holding that the implied-consent notice is not coercive in
failing to inform suspect of her right to refuse); State v. Oyeniyi, 335 Ga. App. 575,
578 (782 SE2d 476) (2016) (holding that the implied-consent notice is not misleading
or an overstatement of the length of suspension authorized by law).
23
Kendrick, 335 Ga. App. at 769 (punctuation omitted) (quoting Schneckloth,
412 U.S. at 227 (II) (B)).
10
that answer during the time that elapsed prior to testing. McKibben also did not
appear to be impaired to the extent that he did not understand what was being asked,
he did not express any objection to the test, and the officer did not force him to take
the test. Thus, upon this particular record, “and considering all of the facts before us,
and affording appropriate deference to the trial court that heard the testimony first-
hand,”24 we affirm the trial court’s denial of McKibben’s motion to suppress.
Judgment affirmed. Reese and Bethel, JJ., concur.
24
Id. at 772.
11