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Dade County Georgia DUI Conviction; “more tests” does not mean additional or independent chemical tests but field sobriety tests under the implied consent law

Avery v. State, A11A1340, Court of Appeals of Georgia, September 7, 2011

. Jesse Trotter Avery was charged with DUI per se, failure to maintain lane, and driving with a suspended license. He filed a motion to exclude his breath test result on the Intoxilyzer 5000 as a result of his request for an additional test not being accommodated under the implied consent law. The Probate Judge for Dade County Georgia is located in the extreme northwest corner of the State of Georgia just south of Chattanooga, Tennessee. The Court Appeals affirmed the Probate Court’s order denying exclusion of the breath test result of 0.080. The Court of Appeals found that Mr. Avery’s request for “Give me some more like tests, like please” indicated some confusion as to what the implied consent rights were by stating  “what—what’s the state’s test.”  The Deputy’s response was simply, “I read you the card[ implied consent rights card.”

Implied consent warnings do not specify to the accused any requirement of requesting an independent chemical test — linguistically, temporally, or otherwise. Ladow v. State, 256 Ga. App. at 728-729; see also McGinn v. State, 268 Ga. App. 450 (602 SE2d 209) (2004). Rather, “[a]n accused’s right to have an additional, independent chemical test administered is invoked by some statement that reasonably could be construed — in light of the circumstances — to be an expression of a desire for an additional, independent test. In adhering to this principle, we are guided by the circumstances surrounding an alleged request, not simply the semantics of the alleged request itself.” State v. Gillaspy, 270 Ga. App. 111, 112 (605 SE2d 835) (2004). Brooks v. State, 285 Ga. App. 624, 626-627 (647 SE2d 328) (2007). Thus, even when requests are similarly or identically worded, different findings on whether an independent test was requested may be compelled depending on the circumstances surrounding the making of the request. Id.; State v. Gillaspy, 270 Ga. App. at 112 (trial court erred as a matter of law by not considering circumstances surrounding request); see also Anderton v. State, 283 Ga. App. 493, 494-495 (1) (642 SE2d 137) (2007).

In this case, the Court of Appeals held the circumstances indicated that Avery’s primary goal was to get the officer to release him which could have been more readily achieved with field sobriety tests and not additional or independent chemical tests. This even though he was wearing handcuffs and had already been read the implied consent rights notifying him of his right to additional tests of his blood, breath, urine, or other bodily substances at his expense and from qualified individuals of his choosing. Therefore, his conviction was affirmed.