State v. Depol

336 Ga.App. 191

784 S.E.2d 51

The STATE

v.DEPOL.

No. A15A1947.

Court of Appeals of Georgia.

March 15, 2016.

Barry William Hixson, Jessica K. Moss, for Appellant.

T. Kevin Mooney, George Albert Stein, Atlanta, for Appellee.

BOGGS, Judge.

The State of Georgia appeals from the trial court's order granting Scott Depol's motion to suppress the results of a breath test based upon the Supreme Court of Georgia's recent decision in Williams v. State, 296 Ga. 817, 771 S.E.2d 373 (2015). Specifically, the trial court concluded that "the Defendant's apparent voluntary intoxication left him without the ability to voluntarily consent to a search of his breath with the use of a machine, despite the lack of threats, benefits or promises from any of the three officers present on the scene." For the reasons explained below, we reverse.

[O]n appeal from a ruling on a motion to suppress, we defer to the trial court's factual findings and credibility determinations, but review de novo the court's application of the law to the undisputed facts. And significantly, to the extent that the controlling facts "are undisputed because they are plainly discernable from the patrol car-mounted video recording," as they are in this case, we review those facts de novo.

(Citations, punctuation and footnotes omitted.) State v. Mosley, 321 Ga.App. 236, 739 S.E.2d 106 (2013). See also Mack v. State, 296 Ga. 239, 241, 765 S.E.2d 896 (2014) (de novo review of videotaped interview to determine if defendant waived Fifth Amendment rights); Vergara v. State,

283 Ga. 175, 178(1), 657 S.E.2d 863 (2008) (de novo review of facts discernible from a videotape). "Although we owe substantial deference to the way in which the trial court resolved disputed questions of material fact, we owe no deference at all to the trial court with respect to questions of law, and instead, we must apply the law ourselves to the material facts. [Cit.]" Hughes v. State, 296 Ga. 744, 750(2), 770 S.E.2d 636 (2015). This includes legal determinations based upon the totality of the circumstances. See, e.g., Hughes, supra, 296 Ga. at 749–752, 770 S.E.2d 636 (no deference owed to trial court's determination that totality of circumstances showed no probable cause to arrest); Boyd v. State, 315 Ga.App. 256, 257(1), 726 S.E.2d 746 (2012) (applying de novo review of videotaped interview to determine if totality of circumstances showed that juvenile knowingly and voluntarily waived his Fifth Amendment right against self-incrimination); Franklin v. State, 249 Ga.App. 834, 835(1), 549 S.E.2d 794 (2001) (applying de novo review of tape recording and police officer testimony to determine whether confession voluntary).

In this case, the trial court ruled based upon the testimony of three sheriff's deputies in a previous motion to suppress hearing,¹ a video of the police interaction with Depol taken from a camera inside one of the deputy's patrol car, and previous findings of fact made in its order denying Depol's first motion to suppress made on other grounds. In its first order, the trial court made the following findings of fact:

Corporal C. Prescott was dispatched to a 911 call in reference to a hit & run/striking fixed object call. Upon her arrival at the scene of the incident, she spoke to the property owner and attempted to locate the vehicle and driver involved at the Kroger down the street. When she was unsuccessful, she returned to the incident location. Shortly after her return, an unknown individual is heard arriving on scene and telling Corporal Prescott that a vehicle that appeared to be involved in an accident was at the auto parts store up the street with the driver trying to change a tire and "he's pretty drunk." It is apparent from her response and later actions that she did nor hear the last comment about possible intoxication. Immediately thereafter, she leaves the incident location and goes to the auto parts store. There, she finds the defendant outside his vehicle in the parking lot of the auto parts store. The vehicle is parked, doors open, and it appears the defendant is attempting to change a tire. She engages him in conversation, and he admits that he was in an accident and did leave the scene. Less than a minute after arriving on the scene, the defendant hands the officer his driver's license. She tells the defendant that she will need his insurance information to write a report, he indicates it just changed, and from there begins a long attempt of the defendant to get the insurance information. This attempt includes looking in the vehicle and making several phone calls.

Four minutes after arriving at the defendant's location, Corporal Prescott calls in the defendant's driver's license and tag information to dispatch. Approximately two minutes later a second officer arrives on scene. Corporal Prescott tells this officer that she doesn't smell anything and that she intends to give the defendant a ticket for leaving the scene. Two minutes later she receives information from dispatch that both the driver's license and tag are valid. Almost four minutes after receiving this dispatch information, the defendant has still not been able to locate any insurance information. He has been free to walk around his vehicle, get in and out of his vehicle, and at one point walk into and out of the auto parts store. At some point, the second officer begins to suspect that the defendant might be impaired and asks Corporal Prescott about doing an alcosensor on the defendant almost four minutes after the dispatch information was received. She reveals that she cannot smell anything at all. She never relays the information from an unknown individual about intoxication, and it appears she really never heard that information. The defendant denies consuming alcohol. The defendant continues to attempt to get insurance information. At some point, a third officer arrives on scene. The audio cuts in and out at some points, as if someone cuts off their microphone.

Seven minutes after the first mention of an alcosensor, the defendant has still not been able to get any insurance information. The second officer tells the first officer that another officer is going to bring an alcosensor. It appears that even Corporal Prescott attempts to get the insurance information for him but is unsuccessful. The alcosensor arrives seven minutes after it was indicated that someone was bringing one. Corporal Prescott is assisted by another officer in operating it, and the defendant voluntarily blows into it. It registers positive for alcohol at approximately twice the legal limit (the number is shown on the video). From there, none of the three officers does any field sobriety evaluations. Corporal Prescott is clearly the lead officer on the case, and the others appear to be waiting for her to make a decision. The defendant appears to talk about some people in the sheriff's office that he knows. For ten minutes after the defendant blows into the alcosensor, all three officers are talking to the defendant and then conversing with each other, with the microphone turned off some. No insurance information has provided at this point still. Four more minutes elapse a[s] the other two officers appear to be attempting to let Corporal Prescott come to the conclusion that they have—which is to arrest the defendant for DUI. One officer even says, "I'd take him to jail—you have enough, crash, presence of alcohol, not last night." Finally Corporal Prescott tells the defendant he is under arrest. It has been approximately 42 minutes since Corporal Prescott arrived on scene. The defendant was never able to provide any insurance information. It is the defendant's apparent inability to successfully find out his insurance information or even operate the telephone properly that attributes to the officers' suspicions of impairment. Additionally, during this lengthy interaction the defendant begins to sway and become unsteady on his feet. After the arrest, Corporal Prescott secures the defendant in the back of her patrol car and reads implied consent properly. Implied consent is read two minutes after the handcuffs go on the defendant. He agrees to take the state's test.

The above facts were gained from a review of the video. At the hearing, Captain Pinyan, the second officer to arrive on the scene, testified that the defendant's eyes were bloodshot and glassy and that he was chewing gum. He also testified that the defendant swayed while trying to talk on the telephone, and he appeared to be under the influence of something. Corporal Prescott also testified at the hearing and said that the defendant's eyes were bloodshot, his speech delayed, he swayed, and when asked if had been drinking said, "No, thank you." The defendant later said that he'd had "too much to drink," but that it was the night before.

(Emphasis supplied.) The trial court denied Depol's motion to suppress based upon its conclusion that probable cause existed for his arrest, the length of his detention was not unreasonable, and the implied consent notice was timely and properly read.

Six months later, Depol filed a supplemental motion to suppress based upon the Supreme Court's intervening decision in Williams, supra. In a second hearing before the trial court, it heard only argument of counsel before ruling from the bench that it would grant the motion. It stated, "All the reasons that I put in my order as to his demeanor are the same reasons that lend me to believe that he could not have formed a voluntary choice. He was, as you watch the video, and it's quite a lengthy video, it's very clear he's extremely impaired."

In its written order granting the second motion to suppress, the trial court expressly states that its ruling is based upon the findings of fact in its previous order, as well as the evidence and testimony presented in the first motion to suppress hearing, which had been held ten months before. It also stated:

The issue at hand is whether the Defendant, in agreeing to

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