                              SECOND DIVISION
                                MILLER, P. J.,
                             DOYLE and REESE, JJ.

                   NOTICE: Motions for reconsideration must be
                   physically received in our clerk’s office within ten
                   days of the date of decision to be deemed timely filed.
                               http://www.gaappeals.us/rules


                                                                   October 30, 2017




In the Court of Appeals of Georgia
 A17A1218. THE STATE v. COUNCIL.

      REESE, Judge.

      The State appeals from the trial court’s grant of Susan Council’s motion in

limine to suppress the results of a breath test obtained after her arrest for driving

under the influence (“DUI”).1 For the reasons set forth, infra, we reverse.

      The record shows that, on September 15, 2016, at approximately 9:00 p.m., a

multi-vehicle collision occurred involving the Appellee. A Cobb County police

officer responded to the scene and began to triage individuals involved in the

accident. He spoke to the Appellee to determine if she was injured. The Appellee did

not indicate to the officer that she was injured, and she declined medical treatment.


      1
        The Appellee was also cited for failure to maintain lane/improper lane change
and following too closely, pursuant to OCGA §§ 40-6-48, 40-6-49, respectively.
She explained to the officer that she “saw traffic stopping ahead but didn’t apply any

brakes[.]” After the officer spoke with the Appellee, emergency medical personnel

and several firefighters told him “they believed that [the Appellee] was under the

influence of alcohol.” The officer called for a DUI Task Force Officer (“DUI officer”)

to continue the investigation.

      A DUI officer arrived on the scene and, after speaking with the responding

officer, he spoke with the Appellee. The DUI officer observed a strong odor of

alcohol on the Appellee and that her eyes were bloodshot and watery. She admitted

to having drunk two glasses of wine. During the conversation, the Appellee’s phone

rang, and the DUI officer permitted the Appellee to answer it. After finishing the

phone call, the Appellee blew into a portable Intoxilyzer, which indicated she “tested

positive for alcohol.” The Appellee initially agreed to participate in the Horizontal

Gaze Nystagmus (“HGN”) test, but then declined to perform the remaining

evaluations after the DUI officer reminded her that those tests were voluntary

evaluations to determine if she was safe to drive. The DUI officer testified that there

was no animosity during the field sobriety testing and that the Appellee “was polite

the entire time.”



                                          2
      The Appellee was placed under arrest and handcuffed. When the DUI officer

initially started reading the implied consent notice, the Appellee interrupted and

requested to stand on the other side of her vehicle, away from traffic. After the

Appellee moved to the opposite side of her car, the DUI officer started over and read

the implied consent notice. After the Appellee asked the DUI officer whether

Georgia’s laws had changed, the DUI officer read the implied consent notice to her

again. The DUI officer asked the Appellee if she would undergo a breath test, and she

consented. The DUI officer then transported the Appellee to a Cobb County Police

Precinct station.

      On the way to the police station, which was a few minutes away from the

accident scene, the Appellee’s phone rang, and she asked the DUI officer if she could

answer it. He apologized to the Appellee and said he could not allow her to answer

her phone. During the conversation, the DUI officer offered to send another officer

to check on the Appellee’s 14-year-old daughter, who was at home alone. The DUI

officer also told the Appellee that, even though it was against the police department’s

policy, “when we get to the precinct, once we’re finished there at the precinct, I’ll let

you call [your boyfriend] to make sure [your daughter] gets checked on.” After



                                           3
arriving at the police station, the DUI officer removed the Appellee’s handcuffs and

administered two breath tests.2

      The Appellee filed a motion in limine to exclude the results of her field

sobriety and breath tests. After a hearing, the trial court found probable cause for the

Appellee’s arrest, granted the Appellee’s motion to suppress her HGN test, and ruled

that the administration of the breath test violated the Appellee’s constitutional rights

against self-incrimination. The State filed a timely appeal of the order, challenging

the suppression of the breath test results.3

             The trial court’s findings as to disputed facts in a ruling on a
      motion to suppress will be reviewed to determine whether the ruling was
      clearly erroneous; where the evidence is uncontroverted and no question
      regarding the credibility of witnesses is presented, the trial court’s




      2
         The record does not contain documentation of the Appellee’s breath test
results. See OCGA § 40-6-391 (a) (5) (“A person shall not drive or be in actual
physical control of any moving vehicle while . . . [t]he person’s alcohol concentration
is 0.08 grams or more at any time within three hours after such driving or being in
actual physical control from alcohol consumed before such driving or being in actual
physical control ended[.]”).
      3
        The trial court’s rulings regarding the HGN test and the finding of probable
cause for the arrest of the Appellee are not part of this appeal.

                                           4
      application of the law to undisputed facts is subject to de novo appellate
      review.4


In Georgia,

      any person who operates a motor vehicle upon the highways or
      elsewhere throughout this state shall be deemed to have given consent,
      subject to [OCGA § 40-6-392], to a chemical test or tests of his or her
      blood, breath, urine, or other bodily substances for the purpose of
      determining the presence of alcohol or any other drug, if arrested for any
      offense arising out of acts alleged to have been committed in violation
      of [OCGA § 40-6-391] or if such person is involved in any traffic
      accident resulting in serious injuries or fatalities.5


      A compelled breath test falls under the protections from unreasonable search

and seizure provided by the Fourth Amendment to the United States Constitution and

the Georgia Constitution.6 Further, “[a] consent to search will normally be held

voluntary if the totality of the circumstances fails to show that the officers used fear,

intimidation, threat of physical punishment, or lengthy detention to obtain the



      4
         State v. Gauthier, 326 Ga. App. 473, 473-474 (756 SE2d 705) (2014)
(citation, footnote and punctuation omitted).
      5
          OCGA § 40-5-55 (a).
      6
          See Kendrick v. State, 335 Ga. App. 766, 768 (782 SE2d 842) (2016).

                                           5
consent.”7 However, consent to a search and/or seizure that is “freely and voluntarily”

given “under the totality of the circumstances” eliminates the need for a warrant.8

With these guiding principles in mind, we turn now to the State’s specific claims of

error.

         The State argues that the trial court erred in ruling that the administration of the

breath test violated the Appellee’s right against self-incrimination provided by the

Georgia Constitution. Specifically, the State argues that the Appellee’s right against

self-incrimination was not violated because the State did not compel the Appellee to

submit to the breath test. We agree.

         Under the Georgia Constitution, “[n]o person shall be compelled to give

testimony tending in any manner to be self-incriminating.”9 Recently, the Supreme

Court of Georgia decided that a compelled breath test also falls under the Georgia

Constitutional right against self-incrimination, which protects individuals from


         7
       Cuaresma v. State, 292 Ga. App. 43, 47 (2) (663 SE2d 396) (2008) (footnote
omitted).
         8
             Kendrick, 335 Ga. App. at 768 (citations and punctuation omitted).
         9
        Ga. Const. of 1983, Art. I, Sec. I, Par. XVI; See also OCGA § 24-5-506 (a)
(“[n]o person who is charged in any criminal proceeding with the commission of any
criminal offense shall be compellable to give evidence for or against himself or
herself.”)

                                              6
having the results of a compelled breath test, or their refusal to submit to such testing,

admitted against them in any criminal proceeding.10 The Court held that the implied

consent notice itself is still constitutional because the language of the notice is not per

se coercive.11 Moreover, the Supreme Court of Georgia reaffirmed that the right

against self-incrimination is not violated where an accused voluntarily consents to the

act.12 “[T]he totality of the circumstances test to determine the voluntariness of an

incriminating statement or act for due process purposes is the same test used to

determine the voluntariness of a consent to chemical testing in the DUI context.”13

       In its order on the Appellee’s motion in limine to suppress, the trial court found

that the Appellee “was compelled to [perform the breath test], and to do that act two




       10
          Olevik v. State, No. S17A0738, 2017 WL 4582402 at *12 (2) (c) (iv) (Ga.
Oct. 16, 2017) (The Supreme Court of Georgia overruled Klink v. State, 272 Ga. 605
(533 SE2d 92) (2000) and its progeny to the extent the cases stand for the proposition
that “Paragraph XVI of the Georgia Constitution does not protect against compelled
breath tests or that the right to refuse to submit to such testing is not a constitutional
right.”).
       11
            Id. at *16 (3) (b).
       12
            Id. at *9 (2) (c) (iii).
       13
            Id. at *13 (3) (a) (i) (punctuation omitted).

                                              7
times, to produce evidence against herself in violation of her Georgia Constitutional

right against self-incrimination.”

      In the present case, the Appellee asked the DUI officer numerous questions

about the different field sobriety tests and the breath test throughout the interaction.

From the record, including the video recordings of the interaction between the

Appellee and the DUI officer, the officer patiently and calmly answered her

questions. Further, the Appellee appeared to understand and respond to questions.

The DUI officer testified that he did not make any promises in exchange for the

Appellee’s agreement to submit to a breath test. And, although the DUI officer did

not allow the Appellee to make any phone calls until they were finished with the

breath tests, there is no evidence that the Appellee was forced to take the breath tests

against her will in order to make the phone calls, as the trial court appears to imply.

In other words, the Appellee was not going to be allowed to make the calls until she

either took the breath tests or refused to do so. Thus, refusing to allow her to make

the calls did not constitute coercion.14




      14
           See Olevik at *13 (3) (a) (i).

                                            8
      Therefore, under the totality of circumstances presented in this case,15 we find

that the State did not coerce or compel the Appellee to undergo the breath tests. Thus,

her agreement to the breath tests did not violate her right against self-incrimination.16

      Based on our holding, the Appellee was not compelled to undergo the breath

tests. Therefore, we do not reach the State’s remaining argument.

      Judgment reversed. Miller, P. J., and Doyle, J., concur.




      15
           Id.
      16
           Id.

                                           9
