After Stephen Metzager was arrested for driving under the influence of alcohol, he filed a motion in limine to suppress the results of the state administered breath test, contending he was not given an opportunity to take an independent blood test by a qualified person of his own choosing in accordance with OCGA § § 40-5-67.1 b 2 and 40-6-392 a 3. The trial court granted his motion, and the state appeals. We find no error and affirm. Under OCGA §40-6-392 a 3, a person who undergoes a chemical test at the request of a law enforcement officer is entitled to have a “qualified person of his own choosing administer a chemical test or tests in addition to any administered at the direction of a law enforcement officer.” OCGA § 40-5-67.1 b 2 is the implied consent notice for suspects age 21 or over, and this notice provides, in part, “After first submitting to the required state tests, you are entitled to additional chemical tests of your blood, breath, urine, or other bodily substances at your own expense and from qualified personnel of your own choosing.”
The videotape of Metzager’s stop shows that after arresting Metzager, the officer misreads Georgia’s implied consent notice. Instead of designating which chemical test or tests he requests, the officer offers Metzager a choice of state administered tests by reading the last line of the implied consent notice as: “Will you submit to the state administered chemical test of your blood, breath, or urine under the implied consent law”1 Metzager indicates that he wants a blood test, but the officer then tells him that is not a choice. The officer rephrases the question, asking Metzager if he will submit to a state administered test of his breath under the implied consent law. Metzager requests clarification and asks what the card says exactly. After the officer shares the card with Metzager, the officer tells Metzager, “I designate which test.” Metzager then asks questions regarding his right to an independent test, and the officer tells him he can get an independent test at the hospital. The officer guarantees Metzager that the independent test will show the same results as the breath test will show in jail. Finally, Metzager agrees to the state administered breath test.
