                               FIFTH DIVISION
                                PHIPPS, P. J.,
                         DILLARD and PETERSON, 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


                                                                       June 7, 2016




In the Court of Appeals of Georgia
 A16A0555. THE STATE v. BOWMAN.

      DILLARD, Judge.

      Following a hearing, the trial court granted Philip Bowman’s motion to

suppress the results of a State-administered blood test. The State now appeals that

ruling, arguing that the trial court erred in finding that Bowman did not voluntarily

consent to the test. For the reasons set forth infra, we affirm.

      At the outset, we note that when the facts material to a motion to suppress are

disputed, “it generally is for the trial judge to resolve those disputes and determine

the material facts.”1 This principle is well established, and our Supreme Court has

“identified three corollaries of the principle, which limit the scope of review in


      1
         Hughes v. State, 296 Ga. 744, 746 (1) (770 SE2d 636) (2015); see also Tate
v. State, 264 Ga. 53, 54 (1) (440 SE2d 646) (1994).
appeals from a grant or denial of a motion to suppress in which the trial court has

made express findings of disputed facts.”2 An appellate court generally must (1)

accept a trial court’s findings unless they are clearly erroneous, (2) construe the

evidentiary record in the light most favorable to the factual findings and judgment of

the trial court, and (3) limit its consideration of the disputed facts to those expressly

found by the trial court.3 However, we review de novo the trial court’s “application

of law to the undisputed facts.”4

      So viewed, the record shows that shortly after 1:00 a.m. on January 26, 2014,

a Gwinnett County police officer responded to a dispatch regarding a one-vehicle

accident on a nearby road in Dacula. Upon arrival, the officer observed that the

vehicle had driven off the road and hit a fence and some trees. The vehicle appeared

totaled, but fire-department personnel already on the scene informed the officer that

the driver, ultimately identified as Bowman, suffered only minor injuries. The officer


      2
        Hughes, 296 Ga. at 746 (1); see also May v. State, 334 Ga. App. 807, 807
(780 SE2d 455) (2015); Armentrout v. State, 332 Ga. App. 370, 371 (772 SE2d 817)
(2015).
      3
       Hughes, 296 Ga. at 746 (1); see also May, 334 Ga. App. at 807; Armentrout,
332 Ga. App. at 371-72.
      4
       State v. Conner, 322 Ga. App. 636, 637 (745 SE2d 837) (2013) (punctuation
omitted); see also Armentrout, 332 Ga. App. at 372.

                                           2
then spoke to Bowman and immediately noticed that he was unsteady on his feet and

emanated a strong alcoholic-beverage odor. Based on these observations, the officer

requested that a DUI task-force officer be dispatched to the scene.

      Not long thereafter, the DUI task-force officer arrived and, upon making

contact with Bowman, noticed the wrecked vehicle and that Bowman had a small cut

on his forehead but otherwise did not appear seriously injured. The officer also

noticed that Bowman had blood-shot eyes, slurred speech, and emanated a strong

alcoholic-beverage odor. Additionally, Bowman was very unsteady on his feet, and

thus, the officer had him sit on the bumper of the patrol vehicle while questioning

him. During the officer’s questioning, Bowman admitted that he had consumed

several beers, that he was only twenty years old, and that his driver’s license was still

in his vehicle. At that point, the officer asked Bowman to perform certain field-

sobriety tests. And although Bowman repeatedly muttered that he was “going to jail

anyway,” he allowed the officer to conduct the Horizontal Gaze Nystagmus (HGN)

test, which indicated that he was impaired. The officer then asked Bowman to take

a portable alco-sensor test, but Bowman refused, again stating that he was “going to

jail anyway.”



                                           3
      Based on all of his observations, the task-force officer determined that

Bowman was under the influence of alcohol to the extent that he was a less-safe

driver and placed him under arrest. The officer then read Bowman Georgia’s implied-

consent notice for drivers under the age of 21 two separate times and asked if

Bowman would submit to a State-administered breath test, to which Bowman

responded, “F*** it, man, why not?” However, while being transported to the jail,

Bowman vomited on the back seat of the officer’s patrol vehicle and, at one point,

seemed to be choking. After determining that Bowman could breath, the officer took

him inside the jail for booking. But upon observing Bowman, the nurse on staff

refused to admit him and directed the officer to take Bowman to Gwinnett Medical

Center for evaluation. Once there, the officer once again read the applicable implied-

consent warning, and this time, asked if Bowman would submit to a blood test.

Bowman, lying in a hospital bed, replied saying, “yeah, whatever you got to do.” And

subsequently, with the officer present, hospital personnel drew Bowman’s blood for

testing.

      Thereafter, the State charged Bowman, via accusation, with driving under the

influence of alcohol to the extent that he was a less-safe driver (DUI less safe),5

      5
           See OCGA § 40-6-391 (a) (1).

                                          4
driving under the influence of alcohol with an excessive blood-alcohol concentration

(DUI per se),6 driving with more than 0.02 percent blood-alcohol content while under

the age of 21,7 underage possession of an alcoholic beverage,8 and failure to maintain

lane.9 Bowman subsequently filed a motion to suppress the results of the State-

administered blood test, arguing, inter alia, that he did not voluntarily consent but

merely acquiesced to the test.

      During the hearing on Bowman’s motion to suppress, only the responding

police officers testified. Both agreed that Bowman appeared intoxicated and that,

although he only had a small cut on his forehead, the damage to his vehicle showed

that his collision was not insignificant. Nevertheless, the DUI task-force officer

testified that Bowman did not appear to have difficulty understanding his questions

or communicating generally. The State also played a recording, which was captured

by the recording device on the dashboard of the task-force officer’s vehicle and

provided video and audio of the officer’s interaction with Bowman at the scene and


      6
          See OCGA § 40-6-391 (a) (5).
      7
          See OCGA § 40-6-391 (k) (1).
      8
          See OCGA § 3-3-23 (a) (2).
      9
          See OCGA § 40-6-48 (1).

                                          5
additional audio for a short period of time after Bowman was placed in the backseat

of the patrol vehicle, during which Bowman made unprompted comments about

playing basketball with his brother.

      At the hearing’s conclusion, the trial court took the matter under advisement.

But one month later, the court issued an order granting Bowman’s motion to suppress.

This appeal follows.10

      In its sole enumeration of error, the State contends that the trial court erred in

granting Bowman’s motion to suppress the results of the State-administered blood

test, arguing that the court did not consider the totality of the circumstances in finding

that Bowman did not voluntarily consent to the test. We disagree.

      It is now well established that a suspect’s right under the Fourth Amendment

to be free of unreasonable searches and seizures “applies to the compelled withdrawal

of blood, and the extraction of blood is a search within the meaning of the Georgia

Constitution.”11 Generally, searches are of two types: “those conducted with a search

      10
        See OCGA § 5-7-1 (a) (4) (permitting a direct appeal when the State’s
evidence has been ruled inadmissible).
      11
         Williams v. State, 296 Ga. 817, 819 (771 SE2d 373) (2015); see also Cooper
v. State, 277 Ga. 282, 285 (III) (587 SE2d 605) (2003) (“A suspect’s Fourth
Amendment right to be free of unreasonable searches and seizures applies to the
compelled withdrawal of blood.” (punctuation omitted)).

                                            6
warrant or those undertaken without one, and searches conducted outside the judicial

process are per se unreasonable under the Fourth Amendment, subject only to a few

specifically established and well-delineated exceptions.”12 Accordingly, a warrantless

search is “presumed to be invalid and the State has the burden of showing

otherwise.”13

      One well-recognized exception to the warrant requirement in the context of a

state-administered blood test is “the presence of exigent circumstances.”14 But in

Missouri v. McNeely,15 the Supreme Court of the United States rejected a per se rule

that the natural metabolization of alcohol in a person’s bloodstream constitutes an

exigency justifying an exception to the Fourth Amendment’s search-warrant

requirement for nonconsensual blood testing in all DUI cases.16 Rather, it held that


      12
        Williams, 296 Ga. at 819; see also Coolidge v. New Hampshire, 403 U.S.
443, 454-55 (II) (91 SCt. 2022, 29 LE2d 564) (1971) (noting that searches conducted
without prior approval of a judge or magistrate are per se unreasonable).
      13
         Williams, 296 Ga. at 819; see also Mincey v. Arizona, 437 U.S. 385, 393-94
(I) (98 SCt. 2408, 57 LE2d 290) (1978) (noting that warrants are generally required
to search a person’s home or person).
      14
           Williams, 296 Ga. at 819.
      15
           569 U.S. ___ (133 SCt 1552, 185 LE2d 696) (2013).
      16
           Id. at 1556.

                                          7
“while the natural dissipation of alcohol in the blood may support a finding of

exigency in a specific case, . . . it does not do so categorically.”17 And thus, whether

a warrantless blood test of a drunk-driving suspect is reasonable “must be determined

case by case based on the totality of the circumstances.”18 In this matter, however, the

State does not argue that exigent circumstances supported drawing Bowman’s blood,

but instead, as previously noted, posits that Bowman consented to the test. Thus, we

turn our analytical focus to the issue of consent.

      It is similarly well settled in the context of a DUI blood draw that “a valid

consent to a search eliminates the need for either probable cause or a search

warrant.”19 Historically, Georgia’s appellate courts considered “a defendant’s

affirmative response to the reading of the implied consent notice as sufficient to allow

a search of his or her bodily fluids without further inquiry into the validity of the




      17
           Id. at 1563 (II) (B); accord Williams, 296 Ga. at 821.
      18
           McNeely, at 1563 (II) (B); accord Williams, 296 Ga. at 821.
      19
         Williams, 296 Ga. at 821; see also Cooper, 277 Ga. at 291 (VI) (noting that
a suspect’s valid consent to search eliminates the need for either probable cause or
a search warrant).

                                            8
defendant’s consent.”20 But in Williams v. State,21 the Supreme Court of Georgia held

that “mere compliance with statutory implied consent requirements does not, per se,

equate to actual, and therefore voluntary, consent on the part of the suspect so as to

be an exception to the constitutional mandate of a warrant.”22 Instead, the Williams

Court concluded that the State must show that a suspect “gave actual consent to the

procuring and testing of his blood, which would require the determination of the

voluntariness of the consent under the totality of the circumstances.”23

      Specifically, under Georgia law, voluntariness must “reflect an exercise of free

will, not merely a submission to or acquiescence in the express or implied assertion

of authority.”24 Consequently,

      [t]he voluntariness of consent to search is measured by evaluating the
      totality of the circumstances, which includes factors such as prolonged


      20
        Kendrick v. State, 335 Ga. App. 766, 769 (782 SE2d 842) (2016); see, e.g.,
Meiklejohn v. State, 281 Ga. App. 712, 714 (637 SE2d 117) (2006); State v. Lewis,
233 Ga. App. 390, 392 (1) (504 SE2d 242) (1998).
      21
           296 Ga. 817.
      22
           Id. at 822.
      23
           Id. at 823.
      24
         State v. Austin, 310 Ga. App. 814, 817 (1) (714 SE2d 671) (2011)
(punctuation omitted).

                                          9
      questioning; the use of physical punishment; the accused’s age, level of
      education, intelligence, length of detention, and advisement of
      constitutional rights; and the psychological impact of these factors on
      the accused.25


And while knowledge of the right to refuse consent is one factor to be taken into

account, the government “need not establish such knowledge as the sine qua non of

an effective consent.”26 Rather, the court should consider whether “a reasonable

person would feel free to decline the officers’ request to search or otherwise terminate

the encounter.”27

      In reviewing the record in this matter, including the video-recording of the DUI

task-force officer’s interaction with Bowman at the scene of the accident, there is no

evidence that either officer threatened Bowman or prolonged his detention

unnecessarily in an effort to obtain his consent to the blood test. However, the

evidence did show that Bowman had been in a significant accident, suffered a cut to

his head, and was so unsteady on his feet at the scene that the task-force officer


      25
           Id. (punctuation omitted); accord Kendrick, 335 Ga. App. at 769.
      26
       Schneckloth v. Bustamonte, 412 U.S. 218, 227 (II) (B) (93 SCt 2014, 36
LE2d 854) (1973); accord Kendrick, 335 Ga. App. at 769.
      27
           Kendrick, 335 Ga. App. at 769 (punctuation omitted).

                                          10
directed him to sit on the bumper of the patrol vehicle while he questioned him. And

as previously noted, Bowman was 20 years old at the time, but the task-force officer

made no specific inquiries as to his level of education. In addition, following

Bowman’s arrest, the task-force officer read him Georgia’s implied consent notice for

drivers under the age of 21, but did not inform Bowman of his constitutional rights

under Miranda v. Arizona.28 And while the task-force officer testified that Bowman

appeared to understand the implied-consent notice, his response to most of the

officer’s questions—which Bowman repeated numerous times during the

encounter—was that nothing mattered and he “was going to jail anyway.”

Furthermore, both officers agreed that Bowman was significantly intoxicated during

the encounter, and in fact, the evidence showed that he made nonsensical comments

about playing basketball with his brother and vomited in the back of the patrol

vehicle to the extent that he seemed to be choking. Indeed, upon arriving at the jail,

Bowman’s condition was such that the on-site nursing staff would not admit him and

directed the task-force officer to take him to a nearby hospital.

      Evaluating the totality of these circumstances, we are reminded that “in the

absence of evidence of record demanding a finding contrary to the judge’s

      28
           384 U.S. 436 (86 SCt. 1602, 16 LE2d 694) (1966).

                                         11
determination, the appellate court will not reverse the ruling sustaining a motion to

suppress.”29 And here, the evidence supports the trial court’s findings and certainly

does not demand a conclusion contrary to the court’s ruling.30

      Nevertheless, noting its legitimate interest in combating the deleterious effects

of drunk-driving, the State argues that the trial court’s mere consideration of whether

Bowman’s intoxication affected his ability to voluntarily consent allows DUI suspects

to employ the very behavior the State is attempting to thwart as a shield to any

prosecution of such behavior. But our Supreme Court has previously held that a trial

court may consider a suspect’s lucidity and ability to comprehend questions in

determining whether that suspect’s statements were rendered involuntary as a result

of intoxication.31 Thus, we see no logic to any argument that intoxication should not


      29
         State v. Durrence, 295 Ga. App. 216, 218 (671 SE2d 261) (2008)
(punctuation omitted); accord State v. Stephens, 289 Ga. App. 167, 167 (657 SE2d
18) (2008).
      30
         See Durrence, 295 Ga. App. at 218 (holding that evidence that defendant was
intoxicated and was not advised that he could refuse consent to search supported trial
court’s grant of defendant’s motion to dismiss).
      31
          See Clay v. State, 290 Ga. 822, 827-28 (1) (B) (725 SE2d 260) (2012)
(holding that evidence supported the trial court’s finding that defendant’s first three
statements to police were not voluntary based on testimony that when defendant made
his first statement to officer while in the hospital he was severely intoxicated and
could not appreciate his situation); State v. Folsom, 286 Ga. 105, 111 (4) (686 SE2d

                                          12
also be a factor in determining whether a suspect’s consent to a search is truly

voluntary. Moreover, in its haste to condemn the trial court’s ruling as an across-the-

board preclusion of DUI per se prosecutions, the State neglects to mention that

nothing in the court’s ruling prevents the State from obtaining a warrant to draw a

suspect’s blood in situations, such as this, in which the voluntariness of a suspect’s

consent is difficult to determine. And while obtaining a warrant no doubt imposes

more of a burden on police officers than simply reading the implied-consent notice,

“[i]n those drunk-driving investigations where police officers can reasonably obtain

a warrant before a blood sample can be drawn without significantly undermining the

efficacy of the search, the Fourth Amendment mandates that they do so.”32

      For all of the foregoing reasons, we affirm the trial court’s order granting

Bowman’s motion to suppress the results of the State-administered blood test.

      Judgment affirmed. Phipps, P. J., and Peterson, J., concur.




239) (2009) (concluding that it was permissible for trial court to consider defendant’s
lucidity and ability to comprehend questions as factors in determining whether a
defendant’s statement was rendered involuntary as a result of intoxication).
      32
           McNeely, at 1561.

                                          13
