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What does one state say about suppressing those test results after a top national drunk driving attorney raised some of these same questions?

Court of Appeals of Georgia

KITCHENS
v.
The STATE.
No. A02A1494.
Nov. 18, 2002.
Defendant was convicted in the Superior Court,
Douglas County, Emerson, J., of driving under the
influence of alcohol to the extent that she was a less
safe driver, failure to maintain lane, and driving
with an expired license. Defendant appealed. The
Court of Appeals, Pope, Senior Appellate Judge,
held that: (1) defendant's alcohol breath test results
were subject to suppression, and (2) evidence was
sufficient to support defendant's conviction for
driving under the influence of alcohol to the extent
that she was a less safe driver.
Affirmed in part and reversed in part.
West Headnotes
[1] Automobiles 48A 421
48A Automobiles
48AIX Evidence of Sobriety Tests
48Ak421 k. Advice or Warnings; Presence of
Counsel. Most Cited Cases
Defendant's alcohol breath test results were subject
to suppression in prosecution for driving under the
influence of alcohol to the extent that defendant
was a less safe driver; police officer incorrectly explained
the implied consent warnings to defendant
by overstating the legal limit of alcohol concentration
and incorrectly stating the consequences if defendant
refused to take the alcohol breath test, and
the misinformation may have affected defendant's
decision to consent to the alcohol breath test.
[2] Automobiles 48A 355(6)
48A Automobiles
48AVII Offenses
48AVII(B) Prosecution
48Ak355 Weight and Sufficiency of Evidence
48Ak355(6) k. Driving While Intoxicated.
Most Cited Cases
Evidence was sufficient to support defendant's conviction
for driving under the influence of alcohol to
the extent that she was a less safe driver; police officer
observed defendant's vehicle weaving repeatedly,
defendant smelled strongly of alcohol and
her eyes were bloodshot, defendant stumbled out of
her vehicle and could not maintain her balance
well, and defendant twice failed one of the field
sobriety tests.
**451 *416 Head, Thomas, Webb & Willis, William
C. Head, Atlanta, for appellant.
David McDade, Dist. Atty., Christopher R.
Johnson, Asst. Dist. Atty., for appellee.
*411 POPE, Senior Appellate Judge.
Defendant Mary Cloyd Kitchens was convicted
following a bench trial of driving under the influence
of alcohol to the extent that she **452 was a
less safe driver, failure to maintain lane, and driving
with an expired license. She appeals, arguing
that the trial court erred in admitting the results of
the state-administered breath test into evidence because
the implied consent warning read to her by
the arresting officer was misleading, inaccurate,
and coercive and that the evidence was insufficient
to support her conviction for “less safe” DUI.FN1
FN1. Kitchens does not challenge her convictions
for failure to maintain lane and
driving with an expired license.
As is relevant to this appeal, the transcript shows
the following: Officer Greg Holcomb of the Villa
Rica Police Department testified that on December
7, 2000, he received a call to be on the lookout for a
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white Ford Explorer with Alabama license plates
traveling east on I-20. He spotted a vehicle matching
that description and, after verifying the license
plates and following the vehicle a “little way,” activated
his blue lights and flashing headlights. The
videocamera inside his patrol car was also activated.
Officer Holcomb testified that he decided to
activate his lights because the vehicle was
“weaving over the roadway, crossed the fog line,
also crossed the centerline,” and that he observed
the vehicle weave on numerous occasions. He continued
to follow the vehicle, which did not stop until
he pulled beside it and activated his siren.
Officer Holcomb requested license and insurance
information from the driver of the vehicle, defendant
Kitchens. Officer Holcomb testified that the
driver's license was issued by the State of Alabama
and had expired. The videotape shows that Officer
Holcomb remarked to Kitchens that her eyes were
bloodshot and that the odor of alcohol was
“extremely heavy, extremely heavy,” and that she
replied that she had just “taken some Listerine.”
Officer Holcomb *412 then requested that Kitchens
perform several field sobriety tests, based on
his observations of her driving, odor of alcohol, and
bloodshot eyes. Officer Holcomb testified and the
videotape of the stop shows that Kitchens stumbled
against the side of her vehicle as she was exiting
and that she could not correctly recite the alphabet.
Officer Holcomb also administered an Alco-Sensor
test, which registered positive for alcohol. Officer
Holcomb then placed Kitchens under arrest for
driving under the influence.
Officer Holcomb read Kitchens Georgia's Implied
Consent Warnings. While he was reading the warning,
Officer Holcomb informed Kitchens that if
“the results indicate an alcohol concentration of 10
grams or more,” her Georgia driver's license or
privilege to drive on Georgia highways may be suspended
for one year. After Officer Holcomb completed
the warning, he asked Kitchens if she would
submit to the state's test, and if she understood what
he had just stated to her. Kitchens responded, “I'm
not sure what you just said.” Officer Holcomb then
attempted to explain the notice and informed Kitchens
that her “license to drive in the State of
Georgia” would be suspended if she refused to take
the test, and “[i]f the results indicate ten or more,”
her license may be suspended. After this explanation,
Kitchens again told Officer Holcomb she was
not sure if she understood “exactly what you said,”
and subsequently indicated, “you have very much
confused me.” Officer Holcomb informed Kitchens
she had two choices, to take the test or not take the
test, in which case “you're automatically charged
with DUI and your license [is] going to be suspended.”
Kitchens then indicated that she would take
the test.
The results of the state's breath test indicated Kitchens'
blood alcohol level was 0.199. The trial
court denied Kitchens' motion to exclude the results
of the test and found her guilty of driving under
the influence to the extent that she was a less safe
driver.
[1] 1. Kitchens first argues that the trial court erred
by denying her motion to exclude the results of the
state-administered test because the implied consent
warning was misleading, inaccurate, and coercive.
As stated above, the videotape of the stop and arrest
shows that when Officer Holcomb read the implied
consent warning, he overstated the legal limit indicating
that it was 10 grams instead of 0.10 grams of
alcohol**453 concentration. The record further
shows that after Kitchens indicated she did not understand
the implied consent, Officer Holcomb
again incorrectly advised Kitchens that the legal
limit was 10 grams instead of 0.10 grams.
Moreover, Officer Holcomb also gave Kitchens incorrect
information concerning the consequences if
she refused to take the test. The transcript shows
that Officer Holcomb initially correctly informed
Kitchens, who held an Alabama driver's license,
that her Georgia *413 driver's license or privilege
to drive on the highways of this state would be suspended
for one year if she did not submit to the
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state's test, but during his subsequent explanation of
her rights stated, “[s]o your second choice is to ...
not ... take that test. And once you do that, you're
automatically charged with a DUI and your license
[is] going to be suspended.” Kitchens then agreed
to take the test.
We find the trial court erred in failing to exclude
the test results in this case. Because the laws of this
state no longer require that the implied consent
warning be read exactly so long as the substance of
the notice remains unchanged, OCGA §
40-5-67.1(b)(3), we must now determine
whether the notice given was substantively accurate
so as to permit the driver to make an informed
decision about whether to consent to testing. In
Garrett v. Dept. of Public Safety, [237 Ga. 413,
415(2), 228 S.E.2d 812 (1976),] we recognized
that the purpose of the implied consent law is to
notify drivers of their rights so that they can
make informed decisions. Accordingly, we have
suppressed the results of chemical tests where the
driver was misinformed of his rights and where
that misinformation may have affected his decision
to consent. In State v. Coleman, [216
Ga.App. 598, 599, 455 S.E.2d 604 (1995),] for
example, we held that suppression was required
where an out-of-state driver was wrongly told
that he would lose his driver's license if he refused
testing. Likewise, we have suppressed evidence
of the driver's refusal to consent where that
refusal may have resulted from misleading information.
In State v. Terry, [236 Ga.App. 248,
511 S.E.2d 608 (1999),] for instance, we affirmed
the suppression of evidence of a driver's refusal
to take a blood test where police falsely informed
her that obtaining bond was a pre-condition to independent
testing. We agreed with the trial court
that the misinformation was confusing and could
have affected the driver's decision to refuse testing.
(Footnotes omitted.) State v. Becker, 240 Ga.App.
267, 271(2), 523 S.E.2d 98 (1999).
In this case, we cannot say that the substance of the
notice given was substantially accurate. When he
read the warning and when he explained it to Kitchens,
Officer Holcomb substantially altered the
substance of the notice by overstating the legal limit
of blood alcohol concentration to be 10 grams instead
of 0.10 grams. This court has previously recognized
that overstatement, as opposed to understatement,
of the legal limit of blood alcohol concentration
is the type of *414 misinformation that
might cause someone to submit to testing who
might otherwise refuse. See Maurer v. State, 240
Ga.App. 145, 147(2), 525 S.E.2d 104 (1999). The
state argues, however, that there is nothing in this
case to show that the erroneous overstatement of
the legal limit led Kitchens to submit to testing.
We find this argument unpersuasive.
“To accept the State's arguments, we must first find
that the [language concerning the legal limit] is
superfluous. This we refuse to do. We do not believe
substantial compliance means that it is permissible
to ignore completely the ‘particulars' of
the laws of this state or that it is permissible to
ignore statutory requirements as long as no harm
is shown. ‘The ... requirement is that when the
State seeks to prove the violation by evidence of
a chemical test, the State has the burden of
demonstrating compliance with the statutory requirements.’
(Cit.)”
State v. Hughes, 181 Ga.App. 464, 467, 352 S.E.2d
643 (1987). State v. Causey, 215 Ga.App. 85, 86,
449 S.E.2d 639 (1994).
We also find unavailing the state's reliance on State
v. Webb, 212 Ga.App. 872, 443 S.E.2d 630 (1994),
for the proposition that because Kitchens “was
simply confused,” no **454 harm has been shown.
The notice given in Webb was not inaccurate or
misleading, and Webb does not stand for the proposition
that misleading and inaccurate information
does no harm as long as the accused demonstrates
only general confusion or lack of understanding. As
the author of Webb subsequently made clear, erroneous
and misleading advice requires exclusion of
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the state's test result. Allen v. State, 218 Ga.App.
844, 847(2), 463 S.E.2d 522 (1995).
Moreover, even assuming that drastically overstating
the legal limit of alcohol concentration had no
effect on Kitchens' decision to submit to the state's
test, the record discloses a clearer causal connection
between the officer misinforming Kitchens about
the consequences of her refusal to take the test and
her decision to submit to the test. As stated above,
Kitchens' decision to submit to the test occurred
immediately after Officer Holcomb misinformed
her that her driver's license, which was issued by
the State of Alabama, would be suspended if she refused
to submit to the test. As stated above, we
have previously recognized that misinforming the
holder of an out-of-state driver's license that refusal
to submit to the state's test would result in revocation
of the out-of-state license is the type of misleading
information which may affect the decision
to submit to the test, and may require suppression
of the test results. “Since the consent was based at
least in part on deceptively misleading information
concerning*415 a penalty for refusal, which the
State was unauthorized to implement, [defendant]
was deprived of making an informed choice under
the Implied Consent Statute. Accordingly, the test
results were rendered inadmissible.” Deckard v.
State, 210 Ga.App. 421, 423, 436 S.E.2d 536
(1993). See also State v. Coleman, 216 Ga.App.
598, 599, 455 S.E.2d 604 (1995). But see Rojas v.
State, 235 Ga.App. 524, 527-528(2), 509 S.E.2d 72
(1998) (misinformation about consequence of refusal
to take the state's test harmless because driver
had already refused to take test and misinformation
did not coerce driver to change decision and submit
to testing). And the fact that the officer initially
correctly informed Kitchens that her privilege to
drive on the highways of this state as opposed to
her out-of-state license would be revoked does not
change this result. In State v. Terry, 236 Ga.App. at
250, 511 S.E.2d 608 (1999), we held that inaccurate
and misleading information given in response to
questions about the implied consent notice may
lead to suppression of the state's test results, even
when the accused has previously been given an accurate
and complete notice.
Lastly, we also reject the state's argument that admission
of the test results did not give rise to harmful
error. The trial court, sitting without a jury, specifically
relied on the test results in reaching its
conclusion that Kitchens was a less safe driver,
stating, “[b]ased upon [the] result [of the state's
breath test], the court finds beyond a reasonable
doubt that she is guilty of the offense charged in
that the evidence shows the court that she was a
less safe driver. Her blood alcohol level was 0.199
which exceeds the legal limit significantly and the
evidence of her driving and personal demeanor revealed
that she was less safe to drive.” “ ‘The test
for harmful error is whether it is “highly probable”
that the error contributed to the judgment.’ Head v.
State[, 220 Ga.App. 281, 283(3), 469 S.E.2d 406
(1996)].” Smith v. State, 250 Ga.App. 583, 585(1),
552 S.E.2d 528 (2001). Because “[i]t is highly
probable that the evidence that [ Kitchens'] blood
alcohol level exceeded the legal limit contributed to
the trial court's determination that she was less safe
to drive[,] ... we cannot find the error harmless.”
(Footnote omitted.) Ladow v. State, 256 Ga.App.
726, 730, 569 S.E.2d 572 (2002). See also Smith v.
State, 250 Ga.App. at 585-586(1), 552 S.E.2d 528;
Carthon v. State, 248 Ga.App. 738, 742(1), 548
S.E.2d 649 (2001).
[2] 2. Kitchens also challenges the sufficiency of
the evidence. Having reviewed the transcript and
videotape of the stop, we find the properly admitted
evidence was sufficient to show beyond a reasonable
doubt that Kitchens was guilty of less safe
DUI.
Officer Holcomb testified and the videotape shows
that Kitchens was weaving repeatedly to both the
centerline and the fog line prior to the stop, and that
she did not immediately pull over when Officer
Holcomb activated his flashing lights. Officer Holcomb**
455 stated to Kitchens that the odor of alcohol
was “extremely heavy” and that her eyes
were bloodshot. The officer testified and the video-
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tape discloses that Kitchens stumbled up against
her vehicle as she exited, and Officer Holcomb testified
that he had her walk to the back of the vehicle
and lean against it because she could not maintain
her balance very well. The videotape also shows
that at one point during the stop Kitchens held on
to the back of the vehicle as she took a few steps toward
the side. Additionally, Kitchens twice failed
one of the field sobriety tests, and she registered
positive on an Alco-Sensor test. Officer Holcomb
also testified that, based on his experience, Kitchens
was a less safe driver. It is well established
that police officers may offer opinion testimony
that a defendant was a less safe driver. Byrd v.
State, 240 Ga.App. 354, 523 S.E.2d 578 (1999);
Waits v. State, 232 Ga.App. 357, 358(1), 501
S.E.2d 870 (1998). The evidence in this case was
sufficient to authorize a rational trier of fact to conclude
that Kitchens was under the influence of alcohol
to the extent that she was a less safe driver.
Johnson v. State, 249 Ga.App. 29, 30(1), 546
S.E.2d 922 (2001); Byrd v. State, 240 Ga.App. at
354, 523 S.E.2d 578. “Thus, although we determined
in Division 1 of this opinion that [ Kitchens']
conviction for driving under the influence ... must
be reversed, she may be retried for that offense because
a rational [trier of fact] may find the properly
admitted evidence is sufficient for conviction.”
Carthon v. State, 248 Ga.App. at 743(2), 548
S.E.2d 649.
Judgment affirmed in part and reversed in part.
RUFFIN, P.J., and BARNES, J., concur.
Ga.App.,2002.
Kitchens v. State
258 Ga.App. 411, 574 S.E.2d 451
END OF DOCUMENT
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