Luna-Galacia v. State

369 Ga.App. 142

892 S.E.2d 50

LUNA-GALACIA v. The STATE.

A23A0768

Court of Appeals of Georgia.

August 16, 2023

Reconsideration Denied September 08, 2023

Banks Stubbs & McFarland, Rafe Banks III, Cumming, for Appellant.

William A. Finch, Solicitor-General, Jenna T. Murphy, Assistant Solicitor-General, for Appellee.

DOYLE, Presiding Judge.

A jury found Juan Luna-Galacia guilty of driving under the influence of alcohol and without a valid license. Following the denial of his motion for new trial, Luna-Galacia appealed to this Court, arguing among other things that the trial court erred by admitting the results of his State-administered breath test because his consent to the test was not voluntary. We remanded the case for the trial court to reconsider its ruling in light of the Supreme Court of Georgia's decision in Elliott v. State , 305 Ga. 179, 824 S.E.2d 265 (2019), that a DUI suspect's refusal to submit to a State-administered breath test is not admissible against him. See Luna-Galacia v. State , 349 Ga. App. XXIV (Case No. A18A2040) (March 4, 2019) (unpublished) (" Luna-Galacia I "). The trial court subsequently ruled that Luna-Galacia's breath test was admissible under the totality of the circumstances, and he appeals again. For reasons that follow, we affirm.

We begin with the pertinent facts set forth in our prior opinion, which we will supplement as needed to address the issues in this appeal:

[O]n July 17, 2016, at approximately 2:15 a.m., a police officer pulled over a truck that was failing to maintain its lane. The officer smelled a strong odor of alcohol coming from inside the vehicle, and he observed that the passenger had a beer in his lap. After the officer asked for identification, the driver — Luna-Galacia — gave him a New Mexico drivers license, and the officer asked him to exit the vehicle. Luna-Galacia's eyes were watery and bloodshot, and the officer smelled alcohol on his breath. Luna-Galacia explained that he was driving his brother home but could not tell the officer the address. Luna-Galacia then offered to let the officer search the vehicle; the officer declined. When asked how many beers he had that night, Luna-Galacia initially stated that he had consumed [three] approximately "30 minutes to 40 minutes ago." He then changed it to "three to four" before ultimately admitting he had six beers that night. The officer administered field sobriety tests to Luna-Galacia, who exhibited six out of six "clues" indicating impairment on the [horizontal gaze nystagmus, or "HGN"] test, four out of eight clues on the "walk and turn test," and three out of four clues on the "one-leg stand test."

Concluding that Luna-Galacia was impaired, the officer placed him under arrest, read him verbatim the statutorily mandated implied consent, and asked if he would submit to a breath test. Luna-Galacia agreed, but asked if his license would be suspended. The officer told him he was not suspending his license, but asked again if Luna-Galacia would consent to the breath test, and he replied "Yes, I understand." The officer then transported him to jail, where he administered the Intoxilyzer 9000 breath test on Luna-Galacia, which test showed a [blood alcohol concentration, or "BAC"] of 0.169 and 0.153 [in two separate readings five minutes apart].

Luna-Galacia I , slip op. at 2-4 (footnote omitted).

Luna-Galacia was charged with driving under the influence of alcohol with an unlawful alcohol concentration ("DUI per se"), driving under the influence of alcohol to the extent it was less safe for him to drive ("DUI less safe"), driving with a suspended license, and failure to maintain his lane. Before trial, he moved in limine to exclude the results of his breath test, arguing — as relevant here — that his consent was invalid because the implied consent notice gave legally inaccurate information and that the Intoxilyzer 9000 was not proven to be scientifically reliable. The trial court denied the motion.

The case proceeded to a jury trial, where Luna-Galacia was found guilty of DUI per se, DUI less safe, and driving without a valid license. ¹ The trial court merged the two DUI convictions and sentenced Luna-Galacia to a total of twenty-four months, to serve ten days in confinement and the remainder on probation. Luna-Galacia filed a motion for new trial, arguing among other things that he did not actually consent to the breath test. The trial court denied the motion, ruling that Luna-Galacia did consent because "there was no evidence that [the officer] used fear, intimidation, threat of physical punishment, or lengthy detention to obtain consent." Luna-Galacia appealed, arguing that the implied consent notice was misleading and that his consent to the breath test was not voluntary. He also raised three other issues — that the court should not have permitted the arresting officer to correlate his field sobriety test results to specific blood alcohol levels, that the jury should have been charged on the issue of the voluntariness of his breath test, and that the Intoxilyzer 9000 is not sufficiently reliable.

Addressing Luna-Galacia's argument that "he was coerced into submitting to a breath test because the language of the implied consent notice stated that a refusal to submit to testing was admissible against him," we noted that the trial court had rejected this argument "without the benefit of the Supreme Court's recent ruling in Elliott [.]" Luna-Galacia I , slip op. at 5-6 (1). In particular, we highlighted the Supreme Court's acknowledgment in Elliott that its holding " ‘may affect a totality-of-the-circumstances inquiry into whether a defendant voluntarily submitted to a breath test where the State first threatened that, if [he] refused, that would be evidence against [him] at trial.’ " Slip op. at 6 (1) (emphasis omitted), quoting Elliott , 305 Ga. at 223, 824 S.E.2d 265 (IV) (E), 824 S.E.2d 265. Accordingly, we remanded the case for the trial court to "reconsider its ruling on Luna-Galacia's motion for new trial in light of [the Supreme Court's Elliott holding]." Luna-Galacia I , slip op. at 6 (1). We did not address Luna-Galacia's other enumerations of error. Id. at 6 (2).

Following remand, the trial court entered a second order again denying Luna-Galacia's motion for new trial. The court concluded that

[t]here was no evidence presented, nor any other indication, that the possibility that evidence of a refusal could be used against [Luna-Galacia] factored into [his] decision to provide a breath sample. The only evidence before this Court indicates that the encounter between [the officer] and [Luna-Galacia] was cordial and free of intimidation and coercion; that [Luna-Galacia] understood the encounter, the nature of the Implied Consent Warning, and the reason for the request for a breath sample; and that [his] primary concern was the status of his license.

(Footnote omitted.) The court further found that Luna-Galacia "understood the implied consent advisement and consented to the test, despite having an interpreter assist him at trial." Luna-Galacia appeals for a second time, challenging this new ruling and also reiterating the enumerations of error that we declined to address in his first appeal.

1. Luna-Galacia argues that his consent to the breath test "was not actual and voluntary" because his English language skills were deficient, the implied consent notice he was given was legally incorrect and misleading, he did not knowingly and intelligently waive his rights, and the State did not rebut the presumption of coercion arising from custodial interrogation. ² Accordingly, Luna-Galacia contends that the trial court erred by admitting the test results. We disagree.

We begin with the applicable law. In Olevik v. State , 302 Ga. 228, 806 S.E.2d 505 (2017), our Supreme Court held that the Georgia Constitution's protection against compelled self-incrimination prevents the State from forcing drivers to submit to chemical testing of their breath. Id. at 246 (2) (c) (iv), 806 S.E.2d 505. In determining whether a DUI suspect voluntarily consented to a breath test, or whether the test was compelled, trial courts must consider the totality of the circumstances, including

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.

Id. at 251 (3) (b), 806 S.E.2d 505 (citation and punctuation omitted).

In Elliott , decided 16 months later, the Supreme Court held that the state constitutional protection against compelled self-incrimination precludes the admission of evidence that a driver refused a breath test in a criminal prosecution of the driver. 305 Ga. at 179-180, 824 S.E.2d 265. As we noted in Luna-Galacia I , the Elliott Court "recognize[d]" that its holding "may affect a totality-of-the-circumstances inquiry into whether a defendant voluntarily submitted to a breath test where the State first threatened that, if [he] refused, that would be evidence against [him] at trial." Id. at 223 (IV) (E), 824 S.E.2d 265. The Court did not elaborate on how its ruling might affect the totality-of-the-circumstances inquiry, finding that question was "not presently before [it]. " Id. In the wake of Elliott , this Court has held that "the appropriate inquiry remains whether the defendant's consent to the [breath] test was voluntary under the totality of the circumstances." State v. Henderson , 356 Ga. App. 473, 476, 847 S.E.2d 833 (2020). See also Kallon v. State , 355 Ga. App. 546, 550 (2), 845 S.E.2d 348 (2020) (remanding for the trial court to consider the voluntariness of the defendant's consent to a breath test under the totality of the circumstances in light of Elliott ); Fofanah v. State , 351 Ga. App....