State v. Allen

The officer's conduct in securing the defendant's consent to a state-administered breath test and her initial equivocation was fair and reasonable.

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Linda McCormick Allen was charged with speeding and driving under the influence of alcohol. Allen filed a motion to suppress evidence of the results of the state-administered Intoxilyzer 5000 breath test. The trial court granted Allen’s motion to suppress and the State appeals. The trial court relied on the following facts in granting the motion to suppress: At the time or her arrest, implied consent warnings were read to Allen, and she indicated she was uncertain whether she would consent to the state’s test. Allen was then transported to the police station, where the test was administered. The officer did not read the implied consent notice a second time before administering the test, and Allen did not make any consensual statement prior to performing the test. Based on these facts, and relying on Howell v. State , 266 Ga. App. 480, 481-486 1 597 SE2d 546 2004 the trial court found that the breath test sample was not validly obtained.

Allen argues that the trial court’s order should be affirmed under both Howell and the recent case of State v. Adams , __Ga. App.__ Case No. A04A2101, decided December 13, 2004. We disagree that these cases are controlling. In addition to the facts recited in the trial court’s order, the following facts are also pertinent here: The arresting officer testified at the motion to suppress hearing that Allen was transported to the jail after she indicated she was unsure whether she would take the state’s test. The officer told Allen he would set up the Intoxilyzer and give Allen an opportunity to decide whether she wanted to take the test. The officer set up the Intoxilyzer and explained it to Allen after they arrived at the jail. He then asked Allen “Ma’am, it’s time for me to get a breath sample. Do you want to” The officer testified that Allen then stood up and blew into the machine.

State v. Allen

The officer's conduct in securing the defendant's consent to a state-administered breath test and her initial equivocation was fair and reasonable.

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