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State v Barnes – Not not rescinded but rather fair and reasonable

State v. Barnes, A14A1915, Court of Appeals of Georgia, March 27, 2015.  The State appealed the Fayette County State Court’s order suppressing a DUI alcohol breath test result because Barnes’ refusal to take the test was not rescinded.  Barnes was pulled over and, after an investigation including a portable breath result, was arrested for DUI. She was then read the Georgia Implied Consent rights regarding a request for a State breath test.  She initially refused by saying no I had already took that test.  Another officer on the scene explained that the rights were regarding a test at the police station at which point she replied “Oh, Okay.”  She was taken to the police station and produced a valid breath test result. Barnes filed a motion to suppress the result arguing that she had never rescinded her refusal. The Court granted the motion and suppressed the breath test.  The State appealed.

The Court of Appeals held that the issue is not whether the refusal was rescinded but rather whether the breath test result generated was obtained in a fair and reasonable manner. The Case was then remanded to the trial court to determine the fair and reasonable issue. The strange fact here is that the Officer clearly misread the implied consent in a substantial way by reading implied consent to indicate that a breath result of 0.0 my result in a one-year license suspension instead of reading 0.08 may result in a one-year suspension.  This issue alone should exclude the breath result? See generally, Collins v. State, 290 Ga.App. 418, 420(1), 659 S.E.2d 818 (2008). But it was never raised by the lawyers on appeal or in the trial court.

-Author: George Creal