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Kitchens v. State

The trial court should have suppressed the results of defendant's breath test where her consent was based at least in part on deceptively misleading information concerning the penalty for refusal.

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Defendant Mary Cloyd Kitchens was convicted following a bench trial of driving under the influence of alcohol to the extent that she was a less safe driver, failure to maintain lane and driving with an expired license. She appeals, arguing that the trial court erred in admitting the results of the state-administered breath test into evidence because the implied consent warning read to her by the arresting officer was misleading, inaccurate and coercive and that the evidence was insufficient to support her conviction for “less safe” DUI.1

As is relevant to this appeal, the transcript shows the following: Officer Greg Holcomb of the Villa Rica Police Department testified that on December 7, 2000, he received a call to be on the lookout for a white Ford Explorer with Alabama license plates traveling east on I-20. He spotted a vehicle matching that description, and after verifying the license plates and following the vehicle a “little way”, activated his blue lights and flashing headlights. The video camera inside his patrol car was also activated. Officer Holcomb testified that he decided to activate his lights because the vehicle was “weaving over the roadway, crossed the fog line, also crossed the centerline,” and that he observed the vehicle weave on numerous occasions. He continued to follow the vehicle, which did not stop until he pulled beside it and activated his siren.

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