dissenting.
After a struggle in the dark, the officer in this case subdued, handcuffed, and arrested Austell, a 240-pound male, on suspicion of DUI. As the officer secured Austell’s car and began an inventory of its contents, Austell lay down and vomited in the back of the patrol car. Yet the trial court held without explanation that a reading of the implied consent notice at the jail approximately 45 minutes after Austell’s arrest amounted to an “undue delay.” I believe that this conclusion was erroneous as a matter of law.
The arresting officer was the sole witness at the hearing on Austell’s motion to suppress, and nothing in the trial court’s comments at the conclusion of the hearing or in its final order suggests that she disbelieved any portion of the officer’s testimony. We therefore review the trial court’s application of the law to that evidence de novo. Vansant v. State, 264 Ga. 319, 320 (1) (443 SE2d 474) (1994). Under this standard of review, the issue is whether the arresting officer read Austell his rights “at a time as close in proximity to the instant of arrest as the circumstances of the individual case might warrant.” Perano v. State, 250 Ga. 704, 708 (300 SE2d 668) (1983).
When he pulled Austell over in the early morning darkness, the arresting state trooper, who was working alone, faced a 240-pound 22-year-old who was both drunk and obstreperous. Austell blew air out of his nose rather than through the alco-sensor, pulled away when the officer attempted to put handcuffs on him, and continued to fight back after the officer pushed him onto the guardrail. In the ten minutes or so after handcuffing Austell and placing him in the rear seat of the patrol car, the officer regained some portion of his composure — an effort which apparently included a period “out on the ground” — and then began his inventory of Austell’s car. The officer was surely justified in delaying the reading of the implied consent notice until this point, when backup arrived. See Perano, supra at 707-708 (delay in reading notice until the defendant was at hospital was justified by altercation at the scene of arrest involving both the defendant and his wife).
*22Decided March 23, 2007 Reconsideration denied April 12, 2007. Nina M. Baker, Solicitor-General, Julian A. Mack, Assistant Solicitor-General, for appellant. Julie A. Kert, for appellee.By this time, however, Austell had vomited and was lying down in the patrol car’s rear seat. In my judgment, this proof of Austell’s continued incapacity gave the officer sufficient reason to delay the reading of the notice until soon after arriving at the jail. See Naik v. State, 277 Ga. App. 418, 420 (626 SE2d 608) (2006) (officer’s and passenger’s safety and suspect’s “fragile emotional state” justified 18-minute delay). Finally, “there is no evidence that [Austell] would have benefited by being informed of his rights any earlier than he was .’’Edge v. State, 226 Ga. App. 559, 561 (1) (a) (487 SE2d 117) (1997) (two-hour delay justified where newly hired DOT officer waited for backup to insure that defendant was actually intoxicated). Austell thus cannot show that he was prejudiced by the delay.
Based on the uncontroverted evidence, the arresting officer in this case made a reasonable decision to delay the reading of the notice until just after Austell’s arrival at the jail, and Austell did not suffer harm as a result. I therefore dissent.
I am authorized to state that Presiding Judge Johnson joins in this dissent.