FIRST DIVISION
BARNES, P. J.,
MCMILLIAN and REESE, 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
October 12, 2018
In the Court of Appeals of Georgia
A18A1317. HOLLAND v. THE STATE.
BARNES, Presiding Judge.
Following the grant of his application for interlocutory review, Terry E.
Holland appeals and contends that the trial court erred in denying his motion to
suppress the results of his breath test. Holland essentially contends that his consent
was not freely and voluntarily given because the Implied Consent notice was
misleading and the officer’s explanation was factually and legally inaccurate, and that
in submitting to a breath test he was compelled to provide self-criminating evidence
without the benefit of Miranda warnings. Following our review, we vacate the
judgment and remand to the trial court for further proceedings consistent with this
opinion.
In reviewing the grant or denial of a motion to suppress, we apply three
fundamental principles as outlined by our Supreme Court:
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.
(Citation and punctuation omitted.) Miller v. State, 288 Ga. 286, 286 (1) (702 SE2d
888) (2010). However, “where the evidence is uncontroverted and no question
regarding the credibility of witnesses is presented, the trial court’s application of the
law to undisputed facts is subject to de novo appellate review.” (Citations and
punctuation omitted.) Williams v. State, 327 Ga. App. 239, 239-40 (758 SE2d 141)
(2014).
In applying these principles, we note that the evidence demonstrates that on
October 25, 2015, a law enforcement officer initiated a traffic stop upon Holland for
failing to heed a stop sign and for swerving across a double yellow line. When the
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officer walked to Holland’s vehicle and began talking with Holland, the officer
noticed that Holland’s eyes were bloodshot and glassy, and that Holland’s breath had
an odor of an alcoholic beverage. At the officer’s request, Holland blew into an alco-
sensor, which registered positive for alcohol. The officer conducted field sobriety
tests upon Holland, and observed 6 out of 6 clues on the horizontal gaze nystagmus,
4 out of 8 clues on the walk and turn, and 1 out of 4 clues on the one leg stand.
According to the officer, the number of clues exhibited by Holland on each test
indicated impairment. Thereafter, the officer concluded that Holland was under the
influence of alcohol to the extent that it was less safe for him to drive, and thus
arrested him.
The officer read Holland the Implied Consent notice for persons over 21 years
of age, asking whether Holland would submit to a state-administered chemical test
of his breath.1 The traffic stop recording also showed that, after the officer read
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The notice provides as follows:
Georgia law requires you to submit to the state administered chemical
tests 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 the required testing may be offered into evidence
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Holland the Implied Consent Notice, Holland asked the officer about the breath
testing, and the officer responded, “[if you are] above 0.08, then you’re not DUI.”
Holland consented to the breath test, and the subsequent testing registered an alcohol
concentration at 0.12 grams, which was above the legal limit of 0.08 grams. See
OCGA § 40-6-391 (a) (5).
The officer acknowledged at the suppression hearing that he “made a
misstatement” to Holland about the effect of being above 0.08. As to that remark,
Holland testified that, “[The officer] told me during that time if I blow [sic] a .08 or
above, I would not be guilty of DUI in the State of Georgia. So, I mean, I just consent
[sic] to it.” On cross-examination, however, when asked whether he was “familiar
against you at trial. If you submit to testing and the results indicate 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 to the required state tests,
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 tests
of your breath under the Implied Consent Law?
See OCGA § 40-5-67.1 (b) (2).
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with the concept that if you’ve had too much to drink, it’s illegal to drive?” Holland
answered, “I understand that.”
Holland later filed a motion seeking to exclude the results of the breath test
asserting multiple procedural, constitutional and legal claims, including that his
statements and field sobriety results should be suppressed because the breath test was
conducted without a warrant and he was not properly advised of his Miranda rights.
Additionally, Holland asserted that his consent was not freely and voluntarily given
because the implied consent notice was inherently coercive and coercive as applied
because of the officer’s inaccurate language, which misstated the true and legitimate
consequences of yielding a BAC result of 0.08 % or higher.
In a detailed order, the trial court denied Holland’s motion. In addition to
finding that the stop was supported by reasonable articulable suspicion, the trial court
found that per Birchfield v. North Dakota, __ U. S. __ 136 SCt 2160, 2176-2184 (V)
(B) - (C) (195 LEd2d 560) (2016), the Fourth Amendment permits warrantless breath
tests within the search incident to an arrest exception. According to the trial court, “a
breath test would be similar to a police officer searching a suspect’s person and the
area within the control of the suspect. . . . After Birchfield, breath tests that are
conducted as part of a DUI arrest also fall into the same category.” As such, it
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concluded that Holland’s claims regarding the implied consent notice and the
officer’s inaccurate representation concerning the BAC level were moot because
Holland had no right to refuse or object to the breath tests because it was incident to
his arrest. The court also found that there were no custodial statements made after
Holland was arrested warranting a Miranda warning, and that Holland’s related
claims that his consent was not voluntary was also moot because of the holding in
Birchfield, but that even so, in considering the totality of the circumstances, Holland
had freely and voluntarily consented to the breath test. The trial court then certified
its ruling for immediate review. This Court denied Holland’s application for
interlocutory review, after which, Holland filed a petition for certiorari to the
Supreme Court of Georgia. The Supreme Court granted Holland’s petition, vacated
our order denying review and remanded the case to this Court for reconsideration in
light of its recent opinions in Olevik v. State, 302 Ga. 228 (806 SE2d 505) (2017) and
Fazio v. State, 302 Ga. 295 (806 SE2d 544) (2017). Subsequently, Holland’s
application was reinstated and granted, and this appeal ensued.
1. We first note that within the context of Holland’s enumerated errors, to the
extent that he challenges the constitutionality of the Implied Consent notice, appellate
courts “will not rule on a constitutional question unless it clearly appears in the record
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that the trial court distinctly ruled on the point,” and the record in the present case
contains no such ruling. (Citation and punctuation omitted.) Marks v. State, 280 Ga.
70, 74 (4) (623 SE2d 504) (2005). Thus, we do not rule on this matter or transfer it
to our Supreme Court. See McKibben v. State, 340 Ga. App. 89, 92, n. 10 (796 SE2d
478) (2017).
2. As to Holland’s remaining enumerations of error, the trial court held that any
claims related to Holland’s consent were moot given that per Birchfield, the breath
test was conducted incident to his arrest for DUI so he had no right to refuse or object
to the test. However in Olevik, which was decided after the trial court issued its order
in this case, our Supreme Court determined that a breath test provided by a DUI
suspect after having been read the implied consent warning was subject to a self-
incrimination analysis under Article I, Section I, Paragraph XVI of the Georgia
Constitution. Olevik, 302 Ga. at 235-246 (2) (c). Thus, a suspect is protected from
compelled acts of self incrimination, which includes protection against being
compelled to submit to a breath test given after receiving the implied consent
warning, and accordingly has a right to refuse such testing under the Georgia
Constitution. Id. at 246 (2) (c). The Court further held that
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[d]etermining the voluntariness of (or lack of compulsion surrounding)
a defendant’s incriminating statement or act involves considerations
similar to those employed in determining whether a defendant
voluntarily consented to a search. We have said that the voluntariness
of a consent to search is determined by such factors as the age of the
accused, his education, his intelligence, the length of detention, whether
the accused was advised of his constitutional rights, the prolonged
nature of questioning, the use of physical punishment, and the
psychological impact of all these factors on the accused. In determining
voluntariness, no single factor is controlling. Just as the voluntariness
of consent to search includes an assessment of the psychological impact
of all the factors on a defendant, a significant factor in a due process
inquiry is whether a deceptive police practice caused a defendant to
confess or provide an incriminating statement. And although 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.
(Citations and punctuation omitted.) Olevik, 302 Ga. at 251-252 (3) (b).
In this case, although the trial court did consider some of the circumstances
surrounding Holland’s consent per Williams v. State, 296 Ga. 817 (771 SE2d 373)
(2015), the trial court did not consider whether the officer’s misleading statement to
Holland affected Holland’s decision to take the breath test, having already determined
that specific issues as to Holland’s consent were moot. Compare In Yeong Sik Oh v.
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State, 345 Ga. App. 729, 737 (3) (815 SE2d 95) (2018) (“[A]lthough the presentation
of evidence by the State and [the defendant] and the trial court’s consideration of it
was made under the Fourth Amendment rubric announced by the Supreme Court in
Williams. . . , we are not precluded from reviewing the trial court’s determinations as
to the voluntariness . . . of submitting to the breath test because the trial court would
have applied the same factors in its analysis had it been aware that challenges to the
breath test are properly considered under Olevik rather than Williams.”) (citations and
punctuation omitted.)
Thus, we vacate the trial court’s denial of Holland’s motion to suppress and we
remand for further consideration of the totality of the circumstances surrounding
Holland’s breath test as set forth in Olevik. See Gelzer v. State, __ Ga. __ (No.
A18A1067) (August 29, 2018) (remand required where trial court stated that it did
not make an analysis of the totality of circumstances surrounding the defendant’s
breath test.)
Judgment vacated and case remanded with direction. McMillian and Reese,
JJ., concur.
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