State-administered breath test in Georgia

2022While valid consent can demonstrate that an individual was not compelled to give incriminating testimony when submitting to a state-administered breath test, see Olevik, 302 Ga. at 243 (2) (c) (iii), the State must show that the DUI suspect “gave actual consent to the [state- administered test], which would require the determination of the voluntariness of the consent under the totality of the circumstances.” Williams v. State, 296 Ga. 817, 821, 823 ( 771 SE2d 373 ) (2015); accord Olevik, 302 Ga. at 248 (3) (a), 251 (3) (b) (concluding that “evaluating whether self-incrimination was compelled

2022While valid consent can demonstrate that an individual was not compelled to give incriminating testimony when submitting to a state-administered breath test, see Olevik, 302 Ga. at 243 (2) (c) (iii), the State must show that the DUI suspect “gave actual consent to the [state- administered test], which would require the determination of the voluntariness of the consent under the totality of the circumstances.” Williams v. State, 296 Ga. 817, 821, 823 ( 771 SE2d 373 ) (2015); accord Olevik, 302 Ga. at 248 (3) (a), 251 (3) (b) (concluding that “evaluating whether self-incrimination was compelled

2025Losurdo then moved the court to vacate and reconsider its order in light of a newly decided case, Elliott v. State,7 which held that a driver’s refusal to take the state-administered breath test cannot be admitted at trial, contradicting language in this case’s implied consent notice stating otherwise.8 The trial court vacated its order, and upon review of the new case law, the trial court again held that Losurdo had consented to the breath test under the totality 6 This was the lower result of two breath samples measured. 7 305 Ga. 179 ( 824 SE2d 265 ) (2019). 8 See id. at 223 (IV) (E). 5 of

2025Losurdo then moved the court to vacate and reconsider its order in light of a newly decided case, Elliott v. State,7 which held that a driver’s refusal to take the state-administered breath test cannot be admitted at trial, contradicting language in this case’s implied consent notice stating otherwise.8 The trial court vacated its order, and upon review of the new case law, the trial court again held that Losurdo had consented to the breath test under the totality 6 This was the lower result of two breath samples measured. 7 305 Ga. 179 ( 824 SE2d 265 ) (2019). 8 See id. at 223 (IV) (E). 5 of

2017And in determining whether the defendant gave actual consent to a State-administered breath test, the trial court is required to address the voluntariness of the consent under the totality of the circumstances.” (punctuation omitted)). 13 Young, 339 Ga. App. at 311 (punctuation omitted); accord State v. Jung, 337 Ga. App. 799, 802 ( 788 SE2d 884 ) (2016). 14 Young, 339 Ga.App. at 311 (punctuation omitted); accord Jung, 337 Ga.App. at 802 ; see Dean v. State, 250 Ga. 77, 80 (2) (a) ( 295 SE2d 306 ) (1982) (“[T]he voluntariness of a consent to search is determined by looking to the totality of t

2017And in determining whether the defendant gave actual consent to a State-administered breath test, the trial court is required to address the voluntariness of the consent under the totality of the circumstances.” (punctuation omitted)). 13 Young, 339 Ga. App. at 311 (punctuation omitted); accord State v. Jung, 337 Ga. App. 799, 802 ( 788 SE2d 884 ) (2016). 14 Young, 339 Ga.App. at 311 (punctuation omitted); accord Jung, 337 Ga.App. at 802 ; see Dean v. State, 250 Ga. 77, 80 (2) (a) ( 295 SE2d 306 ) (1982) (“[T]he voluntariness of a consent to search is determined by looking to the totality of t

2017And in determining whether the defendant gave actual consent to a State-administered breath test, the trial court is required to address the voluntariness of the consent under the totality of the circumstances.” (punctuation omitted)). 13 Young, 339 Ga. App. at 311 (punctuation omitted); accord State v. Jung, 337 Ga. App. 799, 802 ( 788 SE2d 884 ) (2016). 14 Young, 339 Ga.App. at 311 (punctuation omitted); accord Jung, 337 Ga.App. at 802 ; see Dean v. State, 250 Ga. 77, 80 (2) (a) ( 295 SE2d 306 ) (1982) (“[T]he voluntariness of a consent to search is determined by looking to the totality of t

2017And in determining whether the defendant gave actual consent to a State-administered breath test, the trial court is required to address the voluntariness of the consent under the totality of the circumstances.” (punctuation omitted)). 13 Young, 339 Ga. App. at 311 (punctuation omitted); accord State v. Jung, 337 Ga. App. 799, 802 ( 788 SE2d 884 ) (2016). 14 Young, 339 Ga.App. at 311 (punctuation omitted); accord Jung, 337 Ga.App. at 802 ; see Dean v. State, 250 Ga. 77, 80 (2) (a) ( 295 SE2d 306 ) (1982) (“[T]he voluntariness of a consent to search is determined by looking to the totality of t

2017And in determining whether the defendant gave actual consent to a State-administered breath test, the trial court is required to address the voluntariness of the consent under the totality of the circumstances.” (punctuation omitted)). 13 Young, 339 Ga. App. at 311 (punctuation omitted); accord State v. Jung, 337 Ga. App. 799, 802 ( 788 SE2d 884 ) (2016). 14 Young, 339 Ga.App. at 311 (punctuation omitted); accord Jung, 337 Ga.App. at 802 ; see Dean v. State, 250 Ga. 77, 80 (2) (a) ( 295 SE2d 306 ) (1982) (“[T]he voluntariness of a consent to search is determined by looking to the totality of t

2017And in determining whether the defendant gave actual consent to a State-administered breath test, the trial court is required to address the voluntariness of the consent under the totality of the circumstances.” (punctuation omitted)). 13 Young, 339 Ga. App. at 311 (punctuation omitted); accord State v. Jung, 337 Ga. App. 799, 802 ( 788 SE2d 884 ) (2016). 14 Young, 339 Ga.App. at 311 (punctuation omitted); accord Jung, 337 Ga.App. at 802 ; see Dean v. State, 250 Ga. 77, 80 (2) (a) ( 295 SE2d 306 ) (1982) (“[T]he voluntariness of a consent to search is determined by looking to the totality of t

2014See Frasier v. State, 295 Ga. App. 596, 599-600 (2) (b) ( 672 SE2d 668 ) (2009).

2014See Frasier v. State, 295 Ga. App. 596, 599-600 (2) (b) ( 672 SE2d 668 ) (2009).

2013“Because [Lee] failed to raise this or any other constitutional objection at trial, he has waived all such objections on appeal.” Breazeale v. State, 290 Ga. App. 632, 637 (10) ( 660 SE2d 376 ) (2008) (citation and punctuation omitted).

2013“Because [Lee] failed to raise this or any other constitutional objection at trial, he has waived all such objections on appeal.” Breazeale v. State, 290 Ga. App. 632, 637 (10) ( 660 SE2d 376 ) (2008) (citation and punctuation omitted).

2022While valid consent can demonstrate that an individual was not compelled to give incriminating testimony when submitting to a state-administered breath test, see Olevik, 302 Ga. at 243 (2) (c) (iii), the State must show that the DUI suspect “gave actual consent to the [state- administered test], which would require the determination of the voluntariness of the consent under the totality of the circumstances.” Williams v. State, 296 Ga. 817, 821, 823 ( 771 SE2d 373 ) (2015); accord Olevik, 302 Ga. at 248 (3) (a), 251 (3) (b) (concluding that “evaluating whether self-incrimination was compelled

2022While valid consent can demonstrate that an individual was not compelled to give incriminating testimony when submitting to a state-administered breath test, see Olevik, 302 Ga. at 243 (2) (c) (iii), the State must show that the DUI suspect “gave actual consent to the [state- administered test], which would require the determination of the voluntariness of the consent under the totality of the circumstances.” Williams v. State, 296 Ga. 817, 821, 823 ( 771 SE2d 373 ) (2015); accord Olevik, 302 Ga. at 248 (3) (a), 251 (3) (b) (concluding that “evaluating whether self-incrimination was compelled

2022In State v. Blazek (“Blazek I”),1 the State appealed the trial court’s decision granting Brian Lee Blazek’s motion for reconsideration of the denial of his motion in limine and motion to suppress the results of the State-administered breath test and field sobriety evaluations.2 The trial court relied upon Price v. State,3 as “binding precedent requiring Miranda[4] warnings to precede an officer’s request for a breath sample 1 353 Ga. App. 127 ( 836 SE2d 213 ) (2019). 2 Id. at 127 . 3 269 Ga. 222 ( 498 SE2d 262 ) (1998). 4 See Miranda v. Arizona, 384 U. S. 436 ( 86 SCt 1602 , 16 LE2d 694) (1966

2022In State v. Blazek (“Blazek I”),1 the State appealed the trial court’s decision granting Brian Lee Blazek’s motion for reconsideration of the denial of his motion in limine and motion to suppress the results of the State-administered breath test and field sobriety evaluations.2 The trial court relied upon Price v. State,3 as “binding precedent requiring Miranda[4] warnings to precede an officer’s request for a breath sample 1 353 Ga. App. 127 ( 836 SE2d 213 ) (2019). 2 Id. at 127 . 3 269 Ga. 222 ( 498 SE2d 262 ) (1998). 4 See Miranda v. Arizona, 384 U. S. 436 ( 86 SCt 1602 , 16 LE2d 694) (1966

2024See Johnson, 354 Ga. App. at 447; Elliott, 305 Ga. at 180 (addressing whether the refusal of a state-administered breath test is admissible at trial).

2023And following a second hearing on the matter, the trial court agreed and ruled that her refusal to do so would be admissible at trial.5 4 See Elliott v. State, 305 Ga. 179 , 223 (IV) (E) ( 824 SE2d 265 ) (2019) (concluding that the Georgia Constitution precludes admission of evidence that a suspect refused to consent to a breath test). 5 See State v. Johnson, 354 Ga. App. 447 , 456-57 (1) (b) ( 841 SE2d 91 ) (2020) (holding that State constitutional right against self-incrimination did not prohibit admission of evidence of defendant’s prior refusal to submit to blood-alcohol test); see also El

2020The Supreme Court of Georgia rejected this argument in State v. Turnquest, 305 Ga. 758 ( 827 SE2d 865 ) (2019), and transferred Kallon’s case back to this Court. the trial court to consider his suppression argument in light of the Supreme Court of Georgia’s decision in Elliott v. State, 305 Ga. 179 ( 824 SE2d 265 ) (2019).

2020The Supreme Court of Georgia rejected this argument in State v. Turnquest, 305 Ga. 758 ( 827 SE2d 865 ) (2019), and transferred Kallon’s case back to this Court. the trial court to consider his suppression argument in light of the Supreme Court of Georgia’s decision in Elliott v. State, 305 Ga. 179 ( 824 SE2d 265 ) (2019).

2017And in determining whether the defendant gave actual consent to a State-administered breath test, the trial court is required to address the voluntariness of the consent under the totality of the circumstances.” (punctuation omitted)). 13 Young, 339 Ga. App. at 311 (punctuation omitted); accord State v. Jung, 337 Ga. App. 799, 802 ( 788 SE2d 884 ) (2016). 14 Young, 339 Ga.App. at 311 (punctuation omitted); accord Jung, 337 Ga.App. at 802 ; see Dean v. State, 250 Ga. 77, 80 (2) (a) ( 295 SE2d 306 ) (1982) (“[T]he voluntariness of a consent to search is determined by looking to the totality of t

2017And in determining whether the defendant gave actual consent to a State-administered breath test, the trial court is required to address the voluntariness of the consent under the totality of the circumstances.” (punctuation omitted)). 13 Young, 339 Ga. App. at 311 (punctuation omitted); accord State v. Jung, 337 Ga. App. 799, 802 ( 788 SE2d 884 ) (2016). 14 Young, 339 Ga.App. at 311 (punctuation omitted); accord Jung, 337 Ga.App. at 802 ; see Dean v. State, 250 Ga. 77, 80 (2) (a) ( 295 SE2d 306 ) (1982) (“[T]he voluntariness of a consent to search is determined by looking to the totality of t

2002Furcal moved to suppress the result of the State-administered breath test on the basis that the implied consent notice was not conveyed to him as required by law. 1 At trial, Furcal conceded the issue is controlled adversely to him by State v. Tosar, 180 Ga. App. 885, 888 ( 350 SE2d 811 ) (1986), in which we held that the implied consent notice does not have to be translated into Spanish for a Spanish-speaking person.

2002Furcal moved to suppress the result of the State-administered breath test on the basis that the implied consent notice was not conveyed to him as required by law. 1 At trial, Furcal conceded the issue is controlled adversely to him by State v. Tosar, 180 Ga. App. 885, 888 ( 350 SE2d 811 ) (1986), in which we held that the implied consent notice does not have to be translated into Spanish for a Spanish-speaking person.

2023See Fofanah v. State, 355 Ga. App. 895 , 898 ( 846 SE2d 154 ) (2020) (upheld trial court’s determination that consent was voluntary under totality of circumstances, despite misleading statement in implied consent notice that refusal could be offered into evidence against him at trial); compare State v. Ortiz, 363 Ga. App. 829 , 833 (1) ( 873 SE2d 217 ) (2022) (when officer failed to ask defendant if he understood English or if he wanted an interpreter, and the defendant repeatedly stated that he did not understand questions from the officer, the trial court did not err in suppressing the resul

2023See Fofanah v. State, 355 Ga. App. 895 , 898 ( 846 SE2d 154 ) (2020) (upheld trial court’s determination that consent was voluntary under totality of circumstances, despite misleading statement in implied consent notice that refusal could be offered into evidence against him at trial); compare State v. Ortiz, 363 Ga. App. 829 , 833 (1) ( 873 SE2d 217 ) (2022) (when officer failed to ask defendant if he understood English or if he wanted an interpreter, and the defendant repeatedly stated that he did not understand questions from the officer, the trial court did not err in suppressing the resul

2023See Fofanah v. State, 355 Ga. App. 895 , 898 ( 846 SE2d 154 ) (2020) (upheld trial court’s determination that consent was voluntary under totality of circumstances, despite misleading statement in implied consent notice that refusal could be offered into evidence against him at trial); compare State v. Ortiz, 363 Ga. App. 829 , 833 (1) ( 873 SE2d 217 ) (2022) (when officer failed to ask defendant if he understood English or if he wanted an interpreter, and the defendant repeatedly stated that he did not understand questions from the officer, the trial court did not err in suppressing the resul

2023See Fofanah v. State, 355 Ga. App. 895 , 898 ( 846 SE2d 154 ) (2020) (upheld trial court’s determination that consent was voluntary under totality of circumstances, despite misleading statement in implied consent notice that refusal could be offered into evidence against him at trial); compare State v. Ortiz, 363 Ga. App. 829 , 833 (1) ( 873 SE2d 217 ) (2022) (when officer failed to ask defendant if he understood English or if he wanted an interpreter, and the defendant repeatedly stated that he did not understand questions from the officer, the trial court did not err in suppressing the resul

2022While valid consent can demonstrate that an individual was not compelled to give incriminating testimony when submitting to a state-administered breath test, see Olevik, 302 Ga. at 243 (2) (c) (iii), the State must show that the DUI suspect “gave actual consent to the [state- administered test], which would require the determination of the voluntariness of the consent under the totality of the circumstances.” Williams v. State, 296 Ga. 817, 821, 823 ( 771 SE2d 373 ) (2015); accord Olevik, 302 Ga. at 248 (3) (a), 251 (3) (b) (concluding that “evaluating whether self-incrimination was compelled

2022While valid consent can demonstrate that an individual was not compelled to give incriminating testimony when submitting to a state-administered breath test, see Olevik, 302 Ga. at 243 (2) (c) (iii), the State must show that the DUI suspect “gave actual consent to the [state- administered test], which would require the determination of the voluntariness of the consent under the totality of the circumstances.” Williams v. State, 296 Ga. 817, 821, 823 ( 771 SE2d 373 ) (2015); accord Olevik, 302 Ga. at 248 (3) (a), 251 (3) (b) (concluding that “evaluating whether self-incrimination was compelled

2020Accordingly, “[b]ecause the trial court failed to perform the legal analysis required in this context, we vacate [the trial court’s refusal to admit evidence of the prior DUI pursuant to OCGA § 24-4-417] and remand for a hearing and a ruling based on a proper analysis and relevant findings.” Sampler v. State, 294 Ga. App. 174, 174-175 ( 669 SE2d 195 ) (2008).7 6 In supplemental briefing before the Supreme Court, the parties discussed the constitutionality of admission of Johnson’s refusal to submit to field sobriety testing.

2020Accordingly, “[b]ecause the trial court failed to perform the legal analysis required in this context, we vacate [the trial court’s refusal to admit evidence of the prior DUI pursuant to OCGA § 24-4-417] and remand for a hearing and a ruling based on a proper analysis and relevant findings.” Sampler v. State, 294 Ga. App. 174, 174-175 ( 669 SE2d 195 ) (2008).7 6 In supplemental briefing before the Supreme Court, the parties discussed the constitutionality of admission of Johnson’s refusal to submit to field sobriety testing.

2020Under these circumstances, the record supports a finding that Smith 15 (Footnotes and punctuation omitted.) Parker v. State, 307 Ga. App. 61, 65 (3) ( 704 SE2d 438 ) (2010). 10 was not “in custody” to the extent that a Miranda warning was required before officers spoke with Smith to ascertain the situation.16 Further, with respect to the breath test, “because a defendant’s Fifth Amendment right against self-incrimination is not implicated by a State-administered breath test, the absence of Miranda warnings does not require suppression of [a defendant’s] consent to the breath test under federal

2020Under these circumstances, the record supports a finding that Smith 15 (Footnotes and punctuation omitted.) Parker v. State, 307 Ga. App. 61, 65 (3) ( 704 SE2d 438 ) (2010). 10 was not “in custody” to the extent that a Miranda warning was required before officers spoke with Smith to ascertain the situation.16 Further, with respect to the breath test, “because a defendant’s Fifth Amendment right against self-incrimination is not implicated by a State-administered breath test, the absence of Miranda warnings does not require suppression of [a defendant’s] consent to the breath test under federal

2020Voyles, 345 Ga. App. at 634.

2020The first test indicated that Leggett had a blood alcohol content (“BAC”) of .105, and the second test indicated a BAC of .099 grams. 2 See Wimberly v. State, 302 Ga. 321, 323 (1) ( 806 SE2d 599 ) (2017). 2 After hearing testimony from the two officers and Leggett, who was proceeding pro se, the trial court denied Leggett’s motion to suppress the results from the State- administered breath test, and found him guilty of improper lane change, as well as DUI per se and DUI less safe.

2020The first test indicated that Leggett had a blood alcohol content (“BAC”) of .105, and the second test indicated a BAC of .099 grams. 2 See Wimberly v. State, 302 Ga. 321, 323 (1) ( 806 SE2d 599 ) (2017). 2 After hearing testimony from the two officers and Leggett, who was proceeding pro se, the trial court denied Leggett’s motion to suppress the results from the State- administered breath test, and found him guilty of improper lane change, as well as DUI per se and DUI less safe.

2020Relying on the Supreme Court of Georgia’s decision in Elliott v. State,11 Leggett argues that he was coerced into taking the State-administered breath test because the arresting officer advised him that a refusal to take the test could be offered into evidence against him at trial. 8 Middleton, 254 Ga. App. at 648 (1). 9 Id. at 649 (1). 10 Cook, 297 Ga. App. at 703 (citation and punctuation omitted). 11 305 Ga. 179 ( 824 SE2d 265 ) (2019). 7 Under the Georgia Constitution, “[n]o person shall be compelled to give testimony tending in any manner to be self-incriminating.”12 While that provision

2020Relying on the Supreme Court of Georgia’s decision in Elliott v. State,11 Leggett argues that he was coerced into taking the State-administered breath test because the arresting officer advised him that a refusal to take the test could be offered into evidence against him at trial. 8 Middleton, 254 Ga. App. at 648 (1). 9 Id. at 649 (1). 10 Cook, 297 Ga. App. at 703 (citation and punctuation omitted). 11 305 Ga. 179 ( 824 SE2d 265 ) (2019). 7 Under the Georgia Constitution, “[n]o person shall be compelled to give testimony tending in any manner to be self-incriminating.”12 While that provision

2020Relying on the Supreme Court of Georgia’s decision in Elliott v. State,11 Leggett argues that he was coerced into taking the State-administered breath test because the arresting officer advised him that a refusal to take the test could be offered into evidence against him at trial. 8 Middleton, 254 Ga. App. at 648 (1). 9 Id. at 649 (1). 10 Cook, 297 Ga. App. at 703 (citation and punctuation omitted). 11 305 Ga. 179 ( 824 SE2d 265 ) (2019). 7 Under the Georgia Constitution, “[n]o person shall be compelled to give testimony tending in any manner to be self-incriminating.”12 While that provision

2020See also State v. Pastorini, 222 Ga. App. 316, 317 (1) ( 474 SE2d 122 ) (1996) (“[R]oadside questioning during the investigation of a routine traffic incident generally does not constitute a custodial situation.”) (citation omitted), overruled on other grounds by State v. Turnquest, 305 Ga. 758 , 775 n.15 ( 827 SE2d 865 ) (2019). 17 (Punctuation omitted.) Fofanah v. State, 351 Ga. App. 632 , 634 (1) ( 832 SE2d 449 ) (2019). 18 Turnquest, 305 Ga. at 758 . 11 Smith’s subsequent blood test was properly and voluntarily administered.

2020See also State v. Pastorini, 222 Ga. App. 316, 317 (1) ( 474 SE2d 122 ) (1996) (“[R]oadside questioning during the investigation of a routine traffic incident generally does not constitute a custodial situation.”) (citation omitted), overruled on other grounds by State v. Turnquest, 305 Ga. 758 , 775 n.15 ( 827 SE2d 865 ) (2019). 17 (Punctuation omitted.) Fofanah v. State, 351 Ga. App. 632 , 634 (1) ( 832 SE2d 449 ) (2019). 18 Turnquest, 305 Ga. at 758 . 11 Smith’s subsequent blood test was properly and voluntarily administered.

2019See id. at 234 (2) (b). 54 282 Ga. 383, 386 (4) ( 651 SE2d 32 ) (2007). 31 Thornton,55 which held that taking an impression of the defendant’s teeth (which requires that a defendant’s mouth be open and is arguably more invasive than simply swabbing a person’s cheek for DNA) did not compel the defendant to perform an affirmative act.56 Based on this precedent, as well as Stinson’s failure to cite to any supporting authority, we conclude that Stinson cannot make a strong showing that, if Person had filed a motion to suppress raising the self-incrimination argument Stinson asserts on appeal, the

2019See id. at 234 (2) (b). 54 282 Ga. 383, 386 (4) ( 651 SE2d 32 ) (2007). 31 Thornton,55 which held that taking an impression of the defendant’s teeth (which requires that a defendant’s mouth be open and is arguably more invasive than simply swabbing a person’s cheek for DNA) did not compel the defendant to perform an affirmative act.56 Based on this precedent, as well as Stinson’s failure to cite to any supporting authority, we conclude that Stinson cannot make a strong showing that, if Person had filed a motion to suppress raising the self-incrimination argument Stinson asserts on appeal, the

2019See id. at 234 (2) (b). 54 282 Ga. 383, 386 (4) ( 651 SE2d 32 ) (2007). 31 Thornton,55 which held that taking an impression of the defendant’s teeth (which requires that a defendant’s mouth be open and is arguably more invasive than simply swabbing a person’s cheek for DNA) did not compel the defendant to perform an affirmative act.56 Based on this precedent, as well as Stinson’s failure to cite to any supporting authority, we conclude that Stinson cannot make a strong showing that, if Person had filed a motion to suppress raising the self-incrimination argument Stinson asserts on appeal, the

2019See id. at 234 (2) (b). 54 282 Ga. 383, 386 (4) ( 651 SE2d 32 ) (2007). 31 Thornton,55 which held that taking an impression of the defendant’s teeth (which requires that a defendant’s mouth be open and is arguably more invasive than simply swabbing a person’s cheek for DNA) did not compel the defendant to perform an affirmative act.56 Based on this precedent, as well as Stinson’s failure to cite to any supporting authority, we conclude that Stinson cannot make a strong showing that, if Person had filed a motion to suppress raising the self-incrimination argument Stinson asserts on appeal, the

2019See id. at 234 (2) (b). 54 282 Ga. 383, 386 (4) ( 651 SE2d 32 ) (2007). 31 Thornton,55 which held that taking an impression of the defendant’s teeth (which requires that a defendant’s mouth be open and is arguably more invasive than simply swabbing a person’s cheek for DNA) did not compel the defendant to perform an affirmative act.56 Based on this precedent, as well as Stinson’s failure to cite to any supporting authority, we conclude that Stinson cannot make a strong showing that, if Person had filed a motion to suppress raising the self-incrimination argument Stinson asserts on appeal, the