In the early morning of February 10, 2002, Mary Harkleroad was pulled over for speeding in Savannah, Georgia. The officer approached the driver’s side of the vehicle and noticed a strong odor of alcohol. Harkleroad’s eyes were bloodshot and her face was flushed. The passenger in the car claimed that he had been drinking and was unfit to drive. The officer directed Harkleroad out of the car and asked if she would take a preliminary breath test. She refused but offered to walk in a line. The officer first administered the HGN test, which Harkleroad reportedly failed. After some persuasion, the officer obtained a hand-held breath test sample that read positive for alcohol consumption. The officer assured Harkleroad that the results of the hand-held breath test were not admissible in court, though a positive/negative result for alcohol is admissible. After administering the hand-held breath test, the officer arrested Harkleroad and informed her of her implied consent rights. She took an Intoxilyzer breath test at the station which produced a result of .94 BAC. Harkleford moved to exclude the results of the HGN test on the grounds of improper administration, as well as the results of her Intoxilyzer test because the officer did not have probable cause to arrest her. Her motions were denied and she was convicted of DUI Per Se and speeding.
Harkleroad’s main argument is that the trial court erred when it denied her motions to suppress the HGN and Intoxilyzer tests because the officer lacked probable cause to arrest her. In part, Harkleroad claims the officer lacked probable cause because the HGN test was improperly administered. The issue with this appeal is that a motion to suppress is not the proper vehicle through which to challenge the administration of an HGN test. The proper vehicle for questioning the legality of field sobriety or breath tests “based merely on non-compliance with agency regulations governing the administration of such tests,” is a motion in limine, Smith v. State, 364 Ga.App (1988). A motion in limine argues the admissibility of evidence before trial outside the grounds of illegal search and seizure. But because a “trial court is not bound by the nomenclature used by a party […], the trial court could treat [a motion to suppress] as a motion in limine” State v. Johnston, 291, Ga.Sup. (1982). In this case, the trial court did not exercise this discretion.
Harkleroad also argued that the officer’s behavior in obtaining the preliminary breath test was deceptive and intimidating, and therefore was a breach of her Fourth Amendment rights. She claimed that the officer misled her as to the admissibility of the test when he suggested that he would not take her to the station if she consented to take the test. Similar to the motion to suppress the HGN test, Harkleford did not properly argue the admissibility of the preliminary breath test, because none of her pre-trial motions moved to specifically exclude the preliminary breath test. For the benefit of the defense and prosecution, any such motion must be filed before arraignment or within a period specified by a judge’s order, Hatcher v. State, 482, Ga.App (1997). If not filed on time, the defendant waives his or her right to constitutional challenges,Ibid.
Finally, Harkleroad asserted that the results of her Intoxilyzer test should be suppressed because the officer misrepresented the admissibility of the preliminary breath test. But the only reasons Harkleroad cited in her motion to suppress the Intoxilyzer result was that the officer lacked probable cause to arrest her and that the result was unreliable because of her asthmatic condition. She did not show that the deception used by the officer to obtain the Intoxlilyzer was “so shocking to the conscience as to violate [a] defendant’s Fourth Amendment rights,” as was her initial claim, Merriweather v. State, 228 Ga.App. 246, 248(3) (1997).
Regarding probable cause, despite any result of a preliminary breath test, the Court reasoned that “the trial court was entitled to conclude not only that Harkleroad’s speeding, her bloodshot eyes, and the odor of alcohol coming from the car gave the officer reasonable and articulable suspicion to detain her to administer the HGN test, but also that when Harkleroad failed that test, the officer had probable cause to arrest her for DUI.” For these reasons, the Court affirmed the trial court’s denial of Harkleroad’s motions to suppress and subsequent conviction.
The theme, if any, to this appeal is the importance of proper legal procedure and its limitations and benefits. Because Harkleroad failed to file certain motions promptly or work within the scope of others, they were either undermined by procedural error or left to the discretion of the trial court to treat them as motions in limine. Because of these circumstances Harkleroad’s defense in the trial, as well as her argument in appeal, was gutted. When dealing with the unfortunate situation of an arrest, it is wise to remember that while the prosecution shoulders the burden of proof, an arresting officer must only show probable cause to make an arrest. It is the job of the defense to increase the State’s burden through legal measures. In this case, the defense allowed the State to take a load off.