                             FIRST DIVISION
                              BARNES, P. J.,
                        MCMILLIAN and MERCIER, 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 27, 2017




In the Court of Appeals of Georgia
 A17A0470. THE STATE v. NICHOLSON.

      MCMILLIAN, Judge.

      The State appeals the trial court’s order granting Kevin Thomas Nicholson’s

motion to suppress the results of a state-administered chemical blood test, arguing

that the trial court erred in concluding that Nicholson did not voluntarily consent to

the test. For the reasons that follow, we agree and reverse.

      “On appeal from a ruling on a motion to suppress, we defer to the trial court’s

factual findings and credibility determinations, but review de novo the court’s

application of the law to the undisputed facts.” (Citation and punctuation omitted.)

State v. Depol, 336 Ga. App. 191, 191 (784 SE2d 51) (2016). And, where, as here, the

controlling facts are undisputed because they are plainly discernable from the patrol

car-mounted video recording, those facts are reviewed de novo. Id.
      So viewed, the record shows that at approximately 7:00 p.m. on the evening of

June 7, 2014, a Georgia State Patrol Trooper saw that the driver of a motorcycle was

not wearing a helmet. When the motorcycle, driven by Nicholson, pulled into a

nearby parking lot, the trooper activated his patrol vehicle’s lights, drove into the

parking lot, and began a traffic-related investigation.1 As soon as the trooper

approached Nicholson, who was still seated on his motorcycle in an open area, he

smelled the odor of intoxicants. While speaking with Nicholson about the need to

wear a helmet, the trooper specifically noticed the odor of an alcoholic beverage

coming from his breath, and Nicholson admitted to having consumed two beers.

Because he had observed Nicholson driving a motorcycle without wearing a helmet,

detected the odor of an alcoholic beverage, and received an admission from

Nicholson that he had consumed alcohol, the trooper determined that it was

appropriate for him to conduct an investigation to determine whether Nicholson was

an impaired driver.

      After instructing Nicholson, the trooper performed various standardized field

sobriety tests, including the horizontal gaze nystagmus (HGN), the walk and turn, and

      1
        The encounter was recorded by the trooper’s patrol car camera, and a digital
copy of the audio and video recording was admitted into evidence without objection
at the motion to suppress hearing.

                                         2
the one leg stand. The trooper observed six out of six clues for the HGN, four out of

eight clues for the walk and turn, and two out of four clues for the one leg stand.

Based on the results of those tests, including Nicholson’s slurred speech and swaying,

and in addition to his initial observations, the trooper believed that Nicholson was

impaired due to the consumption of alcoholic beverages and placed him under arrest

for driving under the influence and handcuffed him. The trooper then asked

Nicholson how many alcoholic beverages he had actually consumed, and Nicholson

changed his response to “two or three.” The trooper also asked Nicholson if he

understood he was under arrest for DUI, and he responded, “Uh, yes, sir. I guess.”

      Immediately following the arrest, the trooper read Nicholson Georgia’s Implied

Consent Notice for suspects over the age of 21 and asked whether Nicholson would

agree to a state-administered chemical test of his blood. According to the trooper,

Nicholson responded in the affirmative, indicating he was willing to undergo the

blood test, and a review of the recording shows that Nicholson nodded his head yes

in response to the trooper’s question. The trooper took Nicholson to the Villa Rica

Police Department where his blood was drawn by an employee of Ten-Eight




                                          3
Forensics, a company the local Georgia State Patrol routinely uses to draw blood.2

The trooper was present for the blood draw and observed that Nicholson was

cooperative during the procedure, did not resist in any fashion, and did not object or

withdraw his consent to the blood test.

      In December 2014, the Carroll County Solicitor-General’s Office filed a three-

count accusation, charging Nicholson with driving under the influence (less safe),

driving under the influence (per se), and failure to wear protective gear on a

motorcycle.3 Nicholson filed a motion to suppress the results of the blood test, which

he later supplemented after our Supreme Court’s decision in Williams v. State, 296

Ga. 817 (771 SE2d 373) (2015).4 Following a hearing in May 2015,5 at which the

trooper was the only witness presented, the trial court issued an order granting the



      2
        The results of the blood test indicated Nicholson had a blood alcohol
concentration of 0.136.
      3
          See OCGA §§ 40-6-391 (a) (1) and (5) and OCGA § 40-6-315.
      4
         In Williams, the Supreme Court clarified that, “[w]hether a warrantless blood
test of a drunk-driving suspect is reasonable must be determined case by case based
on a totality of the circumstances.” (Citation and punctuation omitted.) Williams, 296
Ga. at 821.
      5
         At the hearing, Nicholson conceded that he is not contesting the traffic stop
or the trooper’s reading of the implied consent warning.

                                          4
motion to suppress. In its order, the trial court found that, following the trooper’s

correct reading of Georgia’s implied consent notice, Nicholson agreed to the state-

administered chemical test of his blood without objection and without withdrawing

his consent. However, the trial court found that the State had proven only that

Nicholson had submitted to the trooper’s request and that this was insufficient to

establish “factual consent.”6 This appeal followed.

      1. In its first enumeration of error, the State asserts that the trial court erred in

granting the motion to suppress because it incorrectly found that Nicholson’s

response was merely a “submission” and not a “factual consent.” In Williams, our

Supreme Court rejected a “per se rule automatically equating an affirmative response

to the implied consent notice with actual consent to a search within the meaning of

the Fourth Amendment.” (Citation and punctuation omitted.) McKibben v. State, 340

Ga. App. 89, 92 (796 SE2d 478) (2017). The courts are now “charged instead with

conducting a case-by-case analysis, considering the totality of the circumstances.”

(Citations and punctuation omitted.) Id. at 93. Thus, the results of a warrantless blood



      6
         The trial court did find, however, even disregarding the results of the blood
test, that there was probable cause for Nicholson’s arrest and denied Nicholson’s
motion to dismiss.

                                            5
test are subject to suppression unless the State establishes that the defendant freely

and voluntarily consented to the test. Id.

      “In conducting a totality of the circumstances analysis, we have considered a

host of factors. 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 consent.” (Citation omitted.)

Jackson v. State, 340 Ga. App. 228, 228-29 (1) (797 SE2d 152) (2017). Moreover,

“[t]he defendant’s affirmative response to the implied consent notice may itself be

sufficient evidence of actual and voluntary consent, absent reason to believe the

response was involuntary. The defendant’s failure to express an objection to the test

or change his or her mind also is evidence of actual consent.” (Citation omitted.) Id.

at 229 (1).

      Here, the undisputed facts show that Nicholson was neither injured nor

threatened with harm during his interaction with the trooper. Nicholson appeared to

be acting and responding rationally and did not appear to be confused or extremely

intoxicated. Throughout their encounter, the trooper maintained a friendly demeanor

and tone of voice and allowed Nicholson to ask questions. At one point, Nicholson

asked if he could perform the walk and turn test on more even ground, and the trooper

                                             6
readily agreed, moving his patrol vehicle so that the camera would be facing the area

of the parking lot that Nicholson chose. Nor does Nicholson argue that youth, lack

of education, or low intelligence somehow negated the voluntariness of his consent.

See McKibben, 340 Ga. App. at 93.

      Nicholson, however, argues that “this Court cannot overlook the wording of

the implied consent notice itself and the effect this created on [Nicholson].”

According to Nicholson, because the implied consent notice uses the word “submit”

versus “consent,” a defendant’s submission to a search (via a state-administered blood

test) under Georgia’s implied consent statute is not the same as a defendant “actually

consenting” to a search under the Fourth Amendment, an assertion that the trial court

adopted in its order granting the motion to suppress.7 However, this Court has

previously considered and rejected this argument. See Kendrick v. State, 335 Ga.

App. 766, 769-71 (782 SE2d 842) (2016) (implied-consent notice is not coercive in

failing to inform suspect of right to refuse); State v. Oyeniyi, 335 Ga. App. 575, 578

(782 SE2d 476) (2016) (implied-consent notice is not misleading or an overstatement

of penalties authorized by law).

      7
        Georgia’s implied consent notice applicable to suspects over 21 concludes
with the question: “Will you submit to the state administered chemical tests of your
[blood] under the implied consent law?” OCGA § 40-5-67.1 (b) (2).

                                          7
      Based upon our de novo review, we find that, under a totality of the

circumstances, Nicholson freely and voluntarily consented to the blood test.

Accordingly, we reverse the trial court’s grant of Nicholson’s motion to suppress. See

State v. Depol, 336 Ga. App. 191, 200 (784 SE2d 51) (2016); State v. Young, 339 Ga.

App. 306, 312 (793 SE2d 186) (2016) (where there is no evidence defendant’s

consent was anything but free and voluntary, trial court erred in granting motion to

exclude).

      2. Based on our holding in Division 1, the State’s remaining enumeration of

error is moot.

      Judgment reversed. Barnes, P. J., and Mercier, J., concur.




                                          8
