Brown v. State, A15A1425, Affirmed (November 13, 2015). Raymond Brown was arrested for DUI in Lawrenceville, Georgia in Gwinnett County. Officer Long of the Lawrenceville Police Department stopped Brown after observing him driving erratically. Officer Long performed standardized field sobriety evaluations and arrested Brown for DUI. He read Brown’s statutory Georgia Implied Consent Breath Testing rights which give a driver a right to an additional and/or independent blood, breath, or urine test. Brown requested an independent urine test but he was unsure where to obtain a urine test. Officer Long refused to give Brown a recommendation for a test location.
Officer Long gave Brown two telephone books and a telephone to arrange a test. Brown called his mother who recommended Northside Hospital in Forsyth County. Officer Long refused to claim that it was too far away given the choice of medical facilities in the Gwinnett County area. Officer Long also called an on-duty Magistrate Judge for advice. The Magistrate Judge informed Long that it would be unreasonable in his legal opinion to leave Gwinnett County. Officer Long communicated the Judge’s opinion to Brown. Brown then requested Emory Johns Creek Hospital some 16.5 miles away. Long refused because it was in Fulton County. Brown then requested Gwinnett Medical Center in Duluth which was 13 miles away. Brown got his test. Brown moved to suppress his breath test because he was not given an additional test of his choosing. The Gwinnett County State Court denied his motion. Brown appealed.
OCGA § 40-6-392 (a) (3) provides that a person accused of driving under the influence of alcohol has a right to obtain, in addition to any test administered by the Police, an additional and/or independent chemical test of his blood, breath or urine by a “qualified person of his choosing.” See Hendrix v. State, 254 Ga. App. 807, 808 (564 SE2d 1) (2001). The State must prove compliance with the statute. State v. Metzager, 303 Ga. App. 17, 19,692 SE2d 687 (2010). OCGA 40-6-392 requires that a suspect be given “a meaningful opportunity to choose the testing facility.” Hendrix, 254 Ga. App. at 808. “…if the suspect’s choice is unreasonable, a law enforcement officer is justified in refusing to accommodate the request.” Id. The trial court may consider several factors in resolving this issue, including the following:
(1) availability of or access to funds or resources to pay for the requested test;
(2) a protracted delay in the giving of the test if the officer complies with the accused’s requests;
(3) availability of police time and other resources;
(4) location of the requested facilities, e.g., the hospital to which the accused wants to be taken is nearby but in a different jurisdiction; and
(5) opportunity and ability of accused to make arrangements personally for the testing.
State v. Buffington, 189 Ga. App. 800, 802 (377 SE2d 548) (1989); Lenhardt v. State, 271 Ga. App. 453, 455 (2) (610 SE2d 86) (2005). While the fact that a hospital requested by a DUI Defendant is not in the same county will not justify an Officer’s refusal other facts may, such as listed above. Long was willing to take Brown to facilities that were in the Gwinnett County area; Long was a DUI task force supervisor and did not want to travel too far from the police officers that reported to him; Brown requested hospitals outside the Gwinnett County area; Brown had not made arrangements with anyone at the other requested facilities, and Long obtained the opinion of a Magistrate Judge. The Court of Appeals found that these factors justified the Gwinnett State Court’s finding that Brown request for an additional test had been reasonably accommodated.
Query: why doesn’t it frustrate Brown’s right to an additional test of his choosing from qualified personnel of his choosing, as mandated by OCGA 40-6-392(a)(3), that Officer Long told Brown that a “judge” had decided that it was unreasonable to leave Gwinnett County. How would Brown not know that this Judge would be handling his case? This would seem to be the most undeniable form of coercion negating any independent choice or actual consent. Further, if the magistrate was going to issue a warrant for the arrest of Brown would this not also be an improper ex parte judicial communication or certainly a conflict of interest. It appears at least that giving legal advice to a law enforcement officer in the active investigation of a case would violate at least the spirit if not the express terms of the Georgia Code of Judicial Conduct which provides,
“Judges must perform judicial duties impartially and fairly. Judges who manifest bias on any basis in a proceeding impair the fairness of the proceeding and bring the judiciary into disrepute. Facial expression, body language, in addition to oral communication, can give to parties or lawyers in the proceeding, jurors, the media, and others an appearance of judicial bias. Judges must be alert to avoid behavior that may be perceived as prejudicial.”
“(7)….Judges shall not initiate or consider ex parte communications, or consider other communications made to them outside the presence of the parties concerning a pending or impending proceeding..”
“E. Disqualification (1) Judges shall disqualify themselves in any proceeding in which their impartiality might reasonably be questioned, including but not limited to instances where:…(b) the judge served as a lawyer in the matter of controversy, or a lawyer with whom the judge previously practiced law served during such association as a lawyer concerning the matter, or the judge has been a witness or party in the matter of controversy;”
If a Magistrate Judge gave legal advice about the legality of obtaining an independent urine test in a DUI at a minimum that Judge should be disqualified from issuing a warrant in the case in which the Judge gave advice.
-Author: George Creal