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Darwicki v. State

The arresting officer saw the defendant's car stopped in its lane of travel on a 2-lane road in a mixed commercial and residential area, he initiated a first-tier encounter when he approached the car to offer his assistance and he did not turn the encounter into a second-tier seizure simply by activating his blue lights.

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Following a bench trial, the State Court of Cobb County found Tina Darwicki guilty of driving under the influence of alcohol, OCGA § 40-6-391 a, and improperly parking on the roadway, OCGA § 40-6-202.1 Darwicki appeals from the judgment of conviction, challenging the sufficiency of the evidence, and contending the court erred in denying her motion to suppress. For the following reasons, we affirm in part and reverse in part. 1. Where, as here, the evidence at a hearing on a motion to suppress is uncontroverted and no question of witness credibility is presented, we review the trial court’s application of the law to undisputed facts de novo. Vansant v. State , 264 Ga. 319, 320 1 443 SE2d 474 1994. This Court’s responsibility in reviewing the trial court’s decision on the motion to suppress is to ensure that there was a substantial basis for the trial court’s decision. State v. McFarland , 201 Ga. App. 495 411 SE2d 314 1991.

At about 1:30 a.m. on May 19, 2004, a Cobb County Sheriff’s deputy observed a car stopped in its lane of travel on Kipling Road, a two-lane road in a mixed commercial and residential area. The car was parked with its engine running and its headlights on, about 25 to 50 yards from the intersection with Lower Roswell Road, and in front of a closed business. Although the deputy was suspicious of the car, given that it was stopped in front of a closed business, he was also concerned that the driver might be having car trouble. The deputy parked behind the stopped car, turned on his emergency lights, got out of the patrol car, and approached the driver. As he approached, he detected the strong odor of an alcoholic beverage coming from the driver’s open window. He asked the driver if her car was working properly, and she said “no.”

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