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State v. Hughes – the seige on standard of review continues and de novo wins again

 State v. Hughes, A13A1399, Court of Appeals of Georgia, November 21, 2013. The Court of Appeals reversed the Trial Court in Columbus after granting a motion on probable cause that suppressed a blood test in a felony vehicular homicide.  This case represents another in a long line of recent cases where traditionally an erroneous or any evidence standard has been replaced by de novo appellate review standard.  In Hughes, a 17 year was in an accident involving a fatality.  He allegedly ran a red light, hit a car and a utility pole.  The Officers initially arrested him for the traffic violation of running a red light and misdemeanor vehicular homicide.  No DUI field sobriety evaluations were performed or were DUI even suspected.  It was only after a search incident to arrest disclosed pills in his pocket, that the Officers arrested the Defendant for a Drug DUI less safe and read him implied consent for a blood test.  Defendant challenged the arrest arguing the pills changed nothing if there was no evidence of DUI before arrest.  The Muscogee State Court agreed and granted the motion for lack of probable cause to arrest for DUI and allow a blood test.  Traditionally probable cause cases have been reviewed under any evidence or erroneous standard, (See State v. Gray, 267 Ga.App. 753, 600 S.E.2d 626 (2004); State v. Ellison, 271 Ga. App. 898, 611 S.E.2d 129 (2005); and State v. Damato, 302 Ga. App. 181, 182 (1) (690 SE2d 478) (2010)) but here under the guise of undisputed evidence, the Court applied a de novo review of the admissible evidence to reach its conclusion.  The Dissent argued that the Court disregarded any implicit credibility determinations and substituted its judgment obtained from a cold record for that of the Trial Court which heard and weighed the live testimony in open court.  Defendant intends to petition the Georgia Supreme Court to review this matter and has recently reversed the Court of Appeals regardings its standard of review creep in Brown v. State, No. S12G1287, Supreme Court of Georgia, October 21, 2013.