Taurasi to be named MVP
ESPN.com news services
Phoenix Mercury star guard Diana Taurasi is expected to be named the WNBA's Most Valuable Player on Tuesday, the Arizona Republic reported.
Taurasi led the WNBA in scoring for the third time and is averaging 23.8 points per game in the playoffs. The Mercury open their best-of-5 WNBA Finals series Tuesday night against the Fever at US Airways Center, where Indiana beat Phoenix earlier this season.
"If you look at the list of people who won it, to be mentioned in that group is pretty special," Taurasi told the newspaper, asked what it would mean to her to win the award. "It's a special moment in someone's career. It would be a great honor."
Despite another stellar season on the court, Taurasi endured some off-court drama in July when she was arrested for DUI. She faces three drunken driving-related charges in the incident.
The 27-year-old guard was cited hours after she scored 22 points in the Mercury's 93-81 victory over the Seattle Storm on July 1.
A Phoenix police report showed Taurasi's blood-alcohol level was 0.17 percent, more than twice the Arizona legal limit of 0.08. She is scheduled to appear in court on Oct. 31.
She was suspended two games without pay by the Mercury for "conduct detrimental to the team" regarding the incident.
Mercury coach Corey Gaines told the Republic that Taurasi didn't let the DUI incident affect her play on the court.
"I think all the humans on this Earth make mistakes," Gaines said. "I know I made many. But instead of saying, 'Woe is me' or worrying about it, [Taurasi] stood up and said, 'I did it. I'm wrong.' And she played through it & and took care of business [on the court]. You can go two ways with that, feel sorry for yourself or stand up and say, 'Hey, I made a mistake' and work from there."
Taurasi was the top pick in the 2004 WNBA draft after leading the Connecticut Huskies to three consecutive NCAA titles.
Information from The Associated Press was used in this report.
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Georgia man charged with driving naked in Florida - Augusta Criminal Lawyer
Georgia man charged with driving naked in Florida
The Associated Press
Bunnell, Fla. — Authorities say a Georgia man was driving naked on the highway in Flagler County, where he repeatedly flashed a woman and her 11-year-old son.
A woman driving a tractor-trailer on Interstate 95 with her son in the cab Thursday reported that a naked man in a sport utility vehicle had been keeping pace with her and performing lewd acts. She told authorities that the man followed her for about 8 miles, but she was eventually able to get away by pulling into a weigh station.
The woman reported the man and vehicle to the Florida Highway Patrol, and troopers say the caught up with 45-year-old Mark Duffus about 20 miles to the north on the highway.
Duffus was charged with lewd and lascivious exhibition and indecent exposure. He was released Friday on $2,000 bail.
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Augusta GA DUI Lawyer Criminal Defense Attorney
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The Associated Press
Bunnell, Fla. — Authorities say a Georgia man was driving naked on the highway in Flagler County, where he repeatedly flashed a woman and her 11-year-old son.
A woman driving a tractor-trailer on Interstate 95 with her son in the cab Thursday reported that a naked man in a sport utility vehicle had been keeping pace with her and performing lewd acts. She told authorities that the man followed her for about 8 miles, but she was eventually able to get away by pulling into a weigh station.
The woman reported the man and vehicle to the Florida Highway Patrol, and troopers say the caught up with 45-year-old Mark Duffus about 20 miles to the north on the highway.
Duffus was charged with lewd and lascivious exhibition and indecent exposure. He was released Friday on $2,000 bail.
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Augusta Georgia DUI Lawyer - Police anti-DUI campaign sees results
Augusta Georgia DUI Lawyer - Police anti-DUI campaign sees results
by Adrienne Leon/The Haralson Gateway-Beacon
Beacon Ricky Rich, the division director for Special Operations at the Governor’s Office of Highway Safety, briefs local officers on the success of the Hand Across Boarder program over the past week before the start of the Labor Day Holiday weekend.
Haralson County law enforcement personnel teamed up with the Georgia Office of Highway Safety (GOHS) in an intra-state crack down on drunk driving in Georgia. They took part in the 18th annual “Hands Across the Border” highway safety awareness campaign, which is held during the six days leading up to the Labor Day holiday travel weekend.
Last Friday West Georgia traffic enforcement, along with Alabama traffic enforcement officers and highway safety advocates, gathered at the Georgia Welcome Center on I-20 in Haralson County to hold a briefing about progress on the last day of the campaign. At that time, local officers shared a traditional handshake with Alabama officers in a pledge of their recommitment to reduce crashes, fatalities and serious injuries on the state roadways. As part of the collaborative initiative, officers on both sides of the state line conducted sobriety checks in various locations that led to numerous arrests throughout the day and night.
With help from public safety partners from bordering states including Florida, North Carolina, South Carolina and Tennessee, Georgia saw a sharp decline in fatalities on Georgia roadways around the holiday this year. According to the GOHS, the state defeated predictions that 18 deaths would occur in Georgia this year. However, that number was reduced by half with a total of only nine deaths this year. GOHS Special Division Director of Special Operations Ricky Rich said results from this year show drivers are taking heed of the state’s “Operation Zero Tolerance” policy for drunk driving in order to make Georgia roadways safer.
Meanwhile, the coordination of all the agencies was deemed a major undertaking, according to Haralson County Sheriff Eddie Mixon. He noted the number of public safety officers from Haralson County who participated in the effort was great enough to have a “meaningful impact” during the highway initiative.
“The investment of manpower was significant enough to have meaningful impact on the highways. The goal is not only to save lives with the actual traffic stops, but to also spread the word that Georgia has Zero Tolerance when it comes to driving under the influence,” he said.
In addition, the last night of the campaign was held in Bremen, yielding positive results.
“There were a total of 28 arrests, six drug cases and 77 citations. Seven of those citations were for DUIs,” reported Carroll County Sheriff’s Office Srgt. Greg Holcomb, who also served as Western Regional Traffic Enforcement Network Coordinator for neighboring counties that participated in the campaign. “There were 136 people who did roadblocks in Bremen from 28 different agencies in Georgia.”
While the campaign numbers still pour in with overall impressive results, the GOHS stressed alcohol-related deaths tend to be high during summer holidays wherein people drink and leave barbecues and other celebrations without a designated driver. In 2007, the agency reported more than 13,000 people died in highway crashes involving drivers with a blood alcohol concentration of .08 or higher. Furthermore, the GOHS contends Georgia’s accident data calendar also showed the summer travel period in the state is one of the most dangerous times on the highways.
Therefore, GHOS emphasized the importance of spreading the word about safe driving, and before summer festivities begin, always designate a sober driver. In addition, the agency encouraged people to keep in mind that a buckled seat belt is the best protection against drunk drivers and other traffic accidents.
Augusta GA DUI Lawyer Criminal Defense Attorney
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by Adrienne Leon/The Haralson Gateway-Beacon
Beacon Ricky Rich, the division director for Special Operations at the Governor’s Office of Highway Safety, briefs local officers on the success of the Hand Across Boarder program over the past week before the start of the Labor Day Holiday weekend.
Haralson County law enforcement personnel teamed up with the Georgia Office of Highway Safety (GOHS) in an intra-state crack down on drunk driving in Georgia. They took part in the 18th annual “Hands Across the Border” highway safety awareness campaign, which is held during the six days leading up to the Labor Day holiday travel weekend.
Last Friday West Georgia traffic enforcement, along with Alabama traffic enforcement officers and highway safety advocates, gathered at the Georgia Welcome Center on I-20 in Haralson County to hold a briefing about progress on the last day of the campaign. At that time, local officers shared a traditional handshake with Alabama officers in a pledge of their recommitment to reduce crashes, fatalities and serious injuries on the state roadways. As part of the collaborative initiative, officers on both sides of the state line conducted sobriety checks in various locations that led to numerous arrests throughout the day and night.
With help from public safety partners from bordering states including Florida, North Carolina, South Carolina and Tennessee, Georgia saw a sharp decline in fatalities on Georgia roadways around the holiday this year. According to the GOHS, the state defeated predictions that 18 deaths would occur in Georgia this year. However, that number was reduced by half with a total of only nine deaths this year. GOHS Special Division Director of Special Operations Ricky Rich said results from this year show drivers are taking heed of the state’s “Operation Zero Tolerance” policy for drunk driving in order to make Georgia roadways safer.
Meanwhile, the coordination of all the agencies was deemed a major undertaking, according to Haralson County Sheriff Eddie Mixon. He noted the number of public safety officers from Haralson County who participated in the effort was great enough to have a “meaningful impact” during the highway initiative.
“The investment of manpower was significant enough to have meaningful impact on the highways. The goal is not only to save lives with the actual traffic stops, but to also spread the word that Georgia has Zero Tolerance when it comes to driving under the influence,” he said.
In addition, the last night of the campaign was held in Bremen, yielding positive results.
“There were a total of 28 arrests, six drug cases and 77 citations. Seven of those citations were for DUIs,” reported Carroll County Sheriff’s Office Srgt. Greg Holcomb, who also served as Western Regional Traffic Enforcement Network Coordinator for neighboring counties that participated in the campaign. “There were 136 people who did roadblocks in Bremen from 28 different agencies in Georgia.”
While the campaign numbers still pour in with overall impressive results, the GOHS stressed alcohol-related deaths tend to be high during summer holidays wherein people drink and leave barbecues and other celebrations without a designated driver. In 2007, the agency reported more than 13,000 people died in highway crashes involving drivers with a blood alcohol concentration of .08 or higher. Furthermore, the GOHS contends Georgia’s accident data calendar also showed the summer travel period in the state is one of the most dangerous times on the highways.
Therefore, GHOS emphasized the importance of spreading the word about safe driving, and before summer festivities begin, always designate a sober driver. In addition, the agency encouraged people to keep in mind that a buckled seat belt is the best protection against drunk drivers and other traffic accidents.
Augusta GA DUI Lawyer Criminal Defense Attorney
Drug charges, assault, homicide, murder, speeding, no insurance, battery, aggravated assault, child molestation, sex crimes, rape, premeditated murder, larceny theft, child porn, robbery, burglary, fraud, embezzlement, military offenses, and other Crimes in Georgia.
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Augusta Georgia Criminal Lawyer - Suspect alone beat 8 to death in Ga. home
Police: Suspect alone beat 8 to death in Ga. home
By RUSS BYNUM (AP)
BRUNSWICK, Ga. — A 22-year-old man acted alone when he bludgeoned his father and seven others to death inside a coastal Georgia mobile home, police said Tuesday, though they would not give what weapon was used.
Guy Heinze Jr., who cried "my whole family's dead" when he reported the slayings in a frantic 911 call Aug. 29, was charged Friday with eight counts of murder. Arrest warrants showed each victim had been beaten with a blunt object. None had been shot, Glynn County police Capt. Jay Wiggins said.
Clint Rowe, an uncle to four of the dead, said he found it hard to believe they were all beaten to death unless they were drugged, especially with several grown men among those killed.
"They would've fought until the end," Rowe said. "Wouldn't you think one person would've had a hard time killing eight people with a blunt object without someone giving them a fight?"
Hours after the slayings were discovered, police jailed Heinze on charges of drug possession, evidence tampering and lying to police. He was released on bond but charged with the killings nearly a week later.
His attorney, Ron Harrison, said Heinze was not involved in the slayings.
"He's upset and aggravated at being placed back in jail and is totally distraught over the whole situation," Harrison said.
Police have released few details about the brutal attack, including a possible motive, saying they don't want to reveal anything that could jeopardize the case.
The dead included the suspect's father, 45-year-old Guy Heinze Sr., and six members of an extended family the Heinzes lived with in a 980-square-foot mobile home just north of the port city of Brunswick, midway between Savannah and Jacksonville, Fla.
Also killed were Rusty Toler Sr., 44; his sister Brenda Gail Falagan, 49; and Toler's four children: Chrissy, 22; Russell Jr., 20; Michael, 19; and Michelle, 15.
Chrissy Toler's boyfriend, 30-year-old Joseph L. West, was also killed. Her 3-year-old son, Byron Jimerson Jr., survived the attack with serious injuries — for which Heinze has been charged with attempted murder.
District Attorney Stephen Kelley said he won't make a decision on whether to seek the death penalty until after Heinze is indicted.
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Augusta GA DUI Lawyer Criminal Defense Attorney
Drug charges, assault, homicide, murder, speeding, no insurance, battery, aggravated assault, child molestation, sex crimes, rape, premeditated murder, larceny theft, child porn, robbery, burglary, fraud, embezzlement, military offenses, and other Crimes in Georgia.
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By RUSS BYNUM (AP)
BRUNSWICK, Ga. — A 22-year-old man acted alone when he bludgeoned his father and seven others to death inside a coastal Georgia mobile home, police said Tuesday, though they would not give what weapon was used.
Guy Heinze Jr., who cried "my whole family's dead" when he reported the slayings in a frantic 911 call Aug. 29, was charged Friday with eight counts of murder. Arrest warrants showed each victim had been beaten with a blunt object. None had been shot, Glynn County police Capt. Jay Wiggins said.
Clint Rowe, an uncle to four of the dead, said he found it hard to believe they were all beaten to death unless they were drugged, especially with several grown men among those killed.
"They would've fought until the end," Rowe said. "Wouldn't you think one person would've had a hard time killing eight people with a blunt object without someone giving them a fight?"
Hours after the slayings were discovered, police jailed Heinze on charges of drug possession, evidence tampering and lying to police. He was released on bond but charged with the killings nearly a week later.
His attorney, Ron Harrison, said Heinze was not involved in the slayings.
"He's upset and aggravated at being placed back in jail and is totally distraught over the whole situation," Harrison said.
Police have released few details about the brutal attack, including a possible motive, saying they don't want to reveal anything that could jeopardize the case.
The dead included the suspect's father, 45-year-old Guy Heinze Sr., and six members of an extended family the Heinzes lived with in a 980-square-foot mobile home just north of the port city of Brunswick, midway between Savannah and Jacksonville, Fla.
Also killed were Rusty Toler Sr., 44; his sister Brenda Gail Falagan, 49; and Toler's four children: Chrissy, 22; Russell Jr., 20; Michael, 19; and Michelle, 15.
Chrissy Toler's boyfriend, 30-year-old Joseph L. West, was also killed. Her 3-year-old son, Byron Jimerson Jr., survived the attack with serious injuries — for which Heinze has been charged with attempted murder.
District Attorney Stephen Kelley said he won't make a decision on whether to seek the death penalty until after Heinze is indicted.
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Augusta GA DUI Lawyer Criminal Defense Attorney
Drug charges, assault, homicide, murder, speeding, no insurance, battery, aggravated assault, child molestation, sex crimes, rape, premeditated murder, larceny theft, child porn, robbery, burglary, fraud, embezzlement, military offenses, and other Crimes in Georgia.
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Augusta GA DUI Lawyer - Woman alleged to have hit deputy's patrol car pleads not guilty
Augusta GA DUI Lawyer - Woman alleged to have hit deputy's patrol car pleads not guilty
by Mark Millican
The driver of a car that hit a Whitfield County Sheriff’s Office deputy’s patrol car in Tunnel Hill in June pleaded not guilty to several charges in Probate Court on Wednesday,
Angela Renee Norman, 40, of 2853 Keith Road in Ringgold, will now face a bench trial on Oct. 7 after being cited for DUI, driving too fast for conditions and failing to stop for a stop sign. The Georgia State Patrol worked the wreck and said Norman was driving a 2007 Nissan Altima and was in the car alone.
Deputy Randy Cole, who was traveling on Highway 201, complained of pain to his neck and an arm after the collision and went to Hamilton Medical Center.
“He sustained a slight fracture in his hand and was on light duty for about three days, that’s all,” said Maj. John Gibson with the sheriff’s office.
In Norman’s initial appearance in Probate Court on Aug. 19, she pleaded guilty without an attorney representing her. But after Judge Sheri Blevins spoke with her about her right to have an attorney, Norman withdrew the plea and the case was continued to give her time to contact an attorney.
Public defender Lee Ann Feeley represented Norman in court on Wednesday, and afterwards said she did not want to comment on the case. Blevins will rule on the evidence and testimony at the bench trial, a Probate Court spokeswoman said. The officer who wrote the citation will be called, she said, and it is “likely” that Cole will also be summoned to testify.
Tunnel Hill Police Chief Roy Brunson was on the scene shortly after the wreck, and said at the time Norman was “leaving the park at a high rate of speed and ran the stop sign at the park entrance (and) the deputy did not have time to react and get out of the way.”
Norman spent the night in the Whitfield County Jail after the wreck and was released on bond the next morning. A phone number for her could not be found.
Augusta GA DUI Lawyer Criminal Defense Attorney
Drug charges, assault, homicide, murder, speeding, no insurance, battery, aggravated assault, child molestation, sex crimes, rape, premeditated murder, larceny theft, child porn, robbery, burglary, fraud, embezzlement, military offenses, and other Crimes in Georgia.
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by Mark Millican
The driver of a car that hit a Whitfield County Sheriff’s Office deputy’s patrol car in Tunnel Hill in June pleaded not guilty to several charges in Probate Court on Wednesday,
Angela Renee Norman, 40, of 2853 Keith Road in Ringgold, will now face a bench trial on Oct. 7 after being cited for DUI, driving too fast for conditions and failing to stop for a stop sign. The Georgia State Patrol worked the wreck and said Norman was driving a 2007 Nissan Altima and was in the car alone.
Deputy Randy Cole, who was traveling on Highway 201, complained of pain to his neck and an arm after the collision and went to Hamilton Medical Center.
“He sustained a slight fracture in his hand and was on light duty for about three days, that’s all,” said Maj. John Gibson with the sheriff’s office.
In Norman’s initial appearance in Probate Court on Aug. 19, she pleaded guilty without an attorney representing her. But after Judge Sheri Blevins spoke with her about her right to have an attorney, Norman withdrew the plea and the case was continued to give her time to contact an attorney.
Public defender Lee Ann Feeley represented Norman in court on Wednesday, and afterwards said she did not want to comment on the case. Blevins will rule on the evidence and testimony at the bench trial, a Probate Court spokeswoman said. The officer who wrote the citation will be called, she said, and it is “likely” that Cole will also be summoned to testify.
Tunnel Hill Police Chief Roy Brunson was on the scene shortly after the wreck, and said at the time Norman was “leaving the park at a high rate of speed and ran the stop sign at the park entrance (and) the deputy did not have time to react and get out of the way.”
Norman spent the night in the Whitfield County Jail after the wreck and was released on bond the next morning. A phone number for her could not be found.
Augusta GA DUI Lawyer Criminal Defense Attorney
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Augusta GA DUI Lawyer - WATERMAN v. THE STATE.
Augusta GA DUI Lawyer - WATERMAN v. THE STATE.
No. A09A0825
Court of Appeals of Georgia, First Division
August 7, 2009
MILLER, C. J., ANDREWS, P. J., and BARNES, J.
Miller, Chief Judge.
Following a bench trial on stipulated facts, Daniel P. Waterman was convicted of driving under the influence of alcohol to the extent that he was a less safe driver (OCGA § 40-6-391 (a) (1)), driving under the influence of alcohol, per se (OCGA § 40-6-391 (a) (5)), and speeding (OCGA § 40-6-181). Waterman appeals from the judgment of conviction, arguing that the trial court erred in denying his motion to suppress the results of a state administered blood alcohol content test because Waterman requested, but was not given, an independent test, as required by OCGA § 40-6-392 (a) (3). Finding that Waterman did not request an independent test, we affirm.
ô Where the evidence is uncontroverted and no question regarding the credibility of witnesses is presented, the trial courtÆs application of the law to undisputed facts is subject to de novo appellate review.ö (Citation and punctuation omitted.) Collins v. State, 290 Ga.App. 418 (659 S.E.2d 818) (2008).
The record shows that on December 9, 2007, Georgia State Patrol Trooper Nathan Truitt observed a Chevrolet Malibu, driven by Waterman, traveling in excess of the 35 mile-per-hour speed limit. After determining by radar that the vehicleÆs speed was 47 miles-per-hour, Truitt turned his vehicle around to initiate a traffic stop. As he approached the Malibu from the rear, he saw the vehicle swerve into the central turning lane and then back into its previous lane of travel. Once he pulled the vehicle over, Truitt approached the driverÆs side door to speak with Waterman. While standing at the driverÆs side door, Truitt detected the odor of alcoholic beverages.
Truitt asked Waterman to step to the rear of the vehicle. In response to TruittÆs inquiries, Waterman admitted that he had had two mixed drinks containing vodka and a vodka shot and had stopped drinking 45 minutes or an hour earlier. While Truitt spoke to Waterman at the rear of the vehicle, Waterman was swaying from side to side. Waterman agreed to perform an alco-sensor test and tested positive for alcohol. [1] Truitt performed horizontal gaze nystagmus (HGN) on Waterman. At the time, WatermanÆs eyes were glassy, and his pupils were dilated. During the HGN, Waterman exhibited signs of intoxication. Throughout his investigation, Truitt noticed that WatermanÆs speech was slurred.
Truitt arrested Waterman for driving under the influence. After he was placed under arrest, Waterman asked Truitt, ôis there any way I can blow again?ö Truitt replied, ôIÆm going to talk to you about that in just a minute.ö As Truitt was escorting Waterman into the back of his patrol vehicle, Waterman asked three times, ôplease let me blow again.ö Truitt said that he was going to give Waterman that opportunity, ôbut IÆve got to read you something first.ö Truitt then read Waterman the Georgia Implied Consent Notice for drivers over the age of 21. [2] When Truitt asked Waterman if he would consent to a state-administered chemical test of his breath, Waterman replied, ôyes, sir.ö Approximately seven minutes later, Waterman asked Truitt, ôam I going to have the opportunity to blow again?ö Truitt replied, ôyeah, down at the jail you are.ö Truitt transported Waterman to the Spalding County SheriffÆs Office, where Waterman took an Intoxilyzer 5000 test, which showed a blood alcohol content of.100 grams.
ô OCGA § 40-6-392 (a) (3) provides that a person who is accused of DUI and who undergoes a chemical test at the request of a law enforcement officer has the right to have a qualified person of his own choosing administer an additional test.ö McGinn v. State, 268 Ga.App. 450, 451 (602 S.E.2d 209) (2004); Johnson v. State, 261 Ga.App. 633, 636 (2) (583 S.E.2d 489) (2003). ôIf an individual requests an independent test but is unable to obtain it, the results of the State-administered test cannot be used by the State as evidence against him unless the failure to obtain the test is justified.ö (Footnote and punctuation omitted.) Id.
An accusedÆs right to have an additional, independent chemical test administered is invoked by some statement that reasonably could be construed ù in light of the circumstances ù to be an expression of a desire for an additional, independent test. In adhering to this principle, we are guided by the circumstances surrounding an alleged request, not simply the semantics of the alleged request itself.
Anderton v. State, 283 Ga.App. 493, 494 (1) (642 S.E.2d 137) (2007); see also Brooks v. State, 258 Ga.App. 624, 627 (647 S.E.2d 328) (2007). Waterman argues that he invoked his right to an independent test, when, some seven minutes after Truitt had read him the Implied Consent Notice, he asked ôam I going to have the opportunity to blow again?ö We are not persuaded.
At the motion to suppress hearing, Waterman, in response to his counselÆs questions about his understanding of his rights to a blood or breath test, testified:
at the time, I initially thought that the breathalyser that he gave me there on the side of the road was the breathalyser, the only one I would take. So therefore, I was asking, you know, to - to take it again so - you know, æcause I had just got finished eating, my, you know, blood alcohol content level would decrease, you know, and I just wanted to be able to prove that.
Subsequently, in response to his counselÆs further questions, Waterman testified that Truitt had advised him of his right to an independent test; he wanted a breath test of his own; and he had requested the same. On cross-examination, however, Waterman admitted that, at the time, he did not know there was a difference between an independent test and the StateÆs test and that he was satisfied when Truitt told him he could blow down at the station. Waterman testified that he just wanted to receive another breath test, and ô[i]t didnÆt matter whether it was mine or the StateÆs, I wanted another Breathalyser test, æcause I felt that the blood alcohol content would go down. At that time, I did not - I did not know that there were two separate tests.ö
WatermanÆs own testimony, taken as a whole, indicates that he did not intend to request an independent test. Although he was advised of his right to an independent chemical test, he stated that he did not know the difference between an independent and State-administered test or care who administered the test. See Anderton, supra, 283 Ga.App. at 495 (1) (relying on defendantÆs acknowledged indifference as to whether his blood test was performed by the State or independently in concluding that defendant did not request independent test). In light of all the circumstances, WatermanÆs question in the patrol car about whether he would have the opportunity to blow again is best construed as an attempt to confirm that he was going to have an opportunity to take another breath test, administered by the State, in hopes that his blood alcohol content would fall sufficiently prior to the test such that he would somehow be able to evade driving under the influence charges. Under all the circumstances and in light of WatermanÆs testimony, the trial court did not err in concluding that Truitt should not have reasonably construed WatermanÆs question, ôam I going to have the opportunity to blow again?ö as a request for an independent chemical test. Accordingly, the trial court did not err in denying WatermanÆs motion to suppress.
For the reasons set forth above, we affirm the trial courtÆs judgment.
Judgment affirmed.
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Drug charges, assault, homicide, murder, speeding, no insurance, battery, aggravated assault, child molestation, sex crimes, rape, premeditated murder, larceny theft, child porn, robbery, burglary, fraud, embezzlement, military offenses, and other Crimes in Georgia.
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No. A09A0825
Court of Appeals of Georgia, First Division
August 7, 2009
MILLER, C. J., ANDREWS, P. J., and BARNES, J.
Miller, Chief Judge.
Following a bench trial on stipulated facts, Daniel P. Waterman was convicted of driving under the influence of alcohol to the extent that he was a less safe driver (OCGA § 40-6-391 (a) (1)), driving under the influence of alcohol, per se (OCGA § 40-6-391 (a) (5)), and speeding (OCGA § 40-6-181). Waterman appeals from the judgment of conviction, arguing that the trial court erred in denying his motion to suppress the results of a state administered blood alcohol content test because Waterman requested, but was not given, an independent test, as required by OCGA § 40-6-392 (a) (3). Finding that Waterman did not request an independent test, we affirm.
ô Where the evidence is uncontroverted and no question regarding the credibility of witnesses is presented, the trial courtÆs application of the law to undisputed facts is subject to de novo appellate review.ö (Citation and punctuation omitted.) Collins v. State, 290 Ga.App. 418 (659 S.E.2d 818) (2008).
The record shows that on December 9, 2007, Georgia State Patrol Trooper Nathan Truitt observed a Chevrolet Malibu, driven by Waterman, traveling in excess of the 35 mile-per-hour speed limit. After determining by radar that the vehicleÆs speed was 47 miles-per-hour, Truitt turned his vehicle around to initiate a traffic stop. As he approached the Malibu from the rear, he saw the vehicle swerve into the central turning lane and then back into its previous lane of travel. Once he pulled the vehicle over, Truitt approached the driverÆs side door to speak with Waterman. While standing at the driverÆs side door, Truitt detected the odor of alcoholic beverages.
Truitt asked Waterman to step to the rear of the vehicle. In response to TruittÆs inquiries, Waterman admitted that he had had two mixed drinks containing vodka and a vodka shot and had stopped drinking 45 minutes or an hour earlier. While Truitt spoke to Waterman at the rear of the vehicle, Waterman was swaying from side to side. Waterman agreed to perform an alco-sensor test and tested positive for alcohol. [1] Truitt performed horizontal gaze nystagmus (HGN) on Waterman. At the time, WatermanÆs eyes were glassy, and his pupils were dilated. During the HGN, Waterman exhibited signs of intoxication. Throughout his investigation, Truitt noticed that WatermanÆs speech was slurred.
Truitt arrested Waterman for driving under the influence. After he was placed under arrest, Waterman asked Truitt, ôis there any way I can blow again?ö Truitt replied, ôIÆm going to talk to you about that in just a minute.ö As Truitt was escorting Waterman into the back of his patrol vehicle, Waterman asked three times, ôplease let me blow again.ö Truitt said that he was going to give Waterman that opportunity, ôbut IÆve got to read you something first.ö Truitt then read Waterman the Georgia Implied Consent Notice for drivers over the age of 21. [2] When Truitt asked Waterman if he would consent to a state-administered chemical test of his breath, Waterman replied, ôyes, sir.ö Approximately seven minutes later, Waterman asked Truitt, ôam I going to have the opportunity to blow again?ö Truitt replied, ôyeah, down at the jail you are.ö Truitt transported Waterman to the Spalding County SheriffÆs Office, where Waterman took an Intoxilyzer 5000 test, which showed a blood alcohol content of.100 grams.
ô OCGA § 40-6-392 (a) (3) provides that a person who is accused of DUI and who undergoes a chemical test at the request of a law enforcement officer has the right to have a qualified person of his own choosing administer an additional test.ö McGinn v. State, 268 Ga.App. 450, 451 (602 S.E.2d 209) (2004); Johnson v. State, 261 Ga.App. 633, 636 (2) (583 S.E.2d 489) (2003). ôIf an individual requests an independent test but is unable to obtain it, the results of the State-administered test cannot be used by the State as evidence against him unless the failure to obtain the test is justified.ö (Footnote and punctuation omitted.) Id.
An accusedÆs right to have an additional, independent chemical test administered is invoked by some statement that reasonably could be construed ù in light of the circumstances ù to be an expression of a desire for an additional, independent test. In adhering to this principle, we are guided by the circumstances surrounding an alleged request, not simply the semantics of the alleged request itself.
Anderton v. State, 283 Ga.App. 493, 494 (1) (642 S.E.2d 137) (2007); see also Brooks v. State, 258 Ga.App. 624, 627 (647 S.E.2d 328) (2007). Waterman argues that he invoked his right to an independent test, when, some seven minutes after Truitt had read him the Implied Consent Notice, he asked ôam I going to have the opportunity to blow again?ö We are not persuaded.
At the motion to suppress hearing, Waterman, in response to his counselÆs questions about his understanding of his rights to a blood or breath test, testified:
at the time, I initially thought that the breathalyser that he gave me there on the side of the road was the breathalyser, the only one I would take. So therefore, I was asking, you know, to - to take it again so - you know, æcause I had just got finished eating, my, you know, blood alcohol content level would decrease, you know, and I just wanted to be able to prove that.
Subsequently, in response to his counselÆs further questions, Waterman testified that Truitt had advised him of his right to an independent test; he wanted a breath test of his own; and he had requested the same. On cross-examination, however, Waterman admitted that, at the time, he did not know there was a difference between an independent test and the StateÆs test and that he was satisfied when Truitt told him he could blow down at the station. Waterman testified that he just wanted to receive another breath test, and ô[i]t didnÆt matter whether it was mine or the StateÆs, I wanted another Breathalyser test, æcause I felt that the blood alcohol content would go down. At that time, I did not - I did not know that there were two separate tests.ö
WatermanÆs own testimony, taken as a whole, indicates that he did not intend to request an independent test. Although he was advised of his right to an independent chemical test, he stated that he did not know the difference between an independent and State-administered test or care who administered the test. See Anderton, supra, 283 Ga.App. at 495 (1) (relying on defendantÆs acknowledged indifference as to whether his blood test was performed by the State or independently in concluding that defendant did not request independent test). In light of all the circumstances, WatermanÆs question in the patrol car about whether he would have the opportunity to blow again is best construed as an attempt to confirm that he was going to have an opportunity to take another breath test, administered by the State, in hopes that his blood alcohol content would fall sufficiently prior to the test such that he would somehow be able to evade driving under the influence charges. Under all the circumstances and in light of WatermanÆs testimony, the trial court did not err in concluding that Truitt should not have reasonably construed WatermanÆs question, ôam I going to have the opportunity to blow again?ö as a request for an independent chemical test. Accordingly, the trial court did not err in denying WatermanÆs motion to suppress.
For the reasons set forth above, we affirm the trial courtÆs judgment.
Judgment affirmed.
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