                           THIRD DIVISION
                            MILLER, P. J.,
                      MCFADDEN and MCMILLIAN, 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


                                                                       July 7, 2016




In the Court of Appeals of Georgia
 A16A0509. THE STATE v. WILLIAMS.

      MCMILLIAN, Judge.

      Following his conviction in a bench trial on one count of driving under the

influence of drugs (“DUI”), OCGA § 40-6-391 (a) (2), and one count of failure to

maintain lane, OCGA § 40-6-48 (1), John Cletus Williams appealed to the Supreme

Court of Georgia asserting that the state-administered blood test, taken without a

search warrant, violated his rights under the Fourth Amendment to the United States

Constitution, as well as Article I, Section I, Paragraph XIII of the Georgia

Constitution. Williams v. State, 296 Ga. 817, 817 (771 SE2d 373) (2015) (“Williams

I”). Our Supreme Court vacated the trial court’s order denying the motion to suppress,

as well as the judgment of conviction, holding that the trial court “failed to address

whether Williams 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.” (Emphasis in original.) Id. at 823. The Supreme Court

accordingly remanded the case to the trial court for reconsideration of the motion to

suppress. Id.

      On remand, the trial court held an evidentiary motion hearing on September 2,

2015,1 and the trial court subsequently granted the motion. The State challenges that

order in this appeal.

      “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.” Hughes

v. State, 296 Ga. 744, 746 (1) (770 SE2d 636) (2015). In such a case,

      [f]irst, an appellate court generally must accept those findings unless
      they are clearly erroneous. Second, an appellate court must construe the
      evidentiary record in the light most favorable to the factual findings and
      judgment of the trial court. And third, an appellate court generally must
      limit its consideration of the disputed facts to those expressly found by
      the trial court.




      1
       The trial court’s initial denial of the motion was based on stipulated facts at
an abbreviated hearing held immediately before the bench trial.

                                          2
(Citations and footnotes omitted.) Id. See also May v. State, 334 Ga. App. 807, 807

(780 SE2d 455) (2015). However, “less deference to the trial court is owed to the

extent that material facts definitively can be ascertained exclusively by reference to

evidence that is uncontradicted and presents no questions of credibility.” Hughes, 296

Ga. at 746, n.5. In any event, “[a]bsent an abuse of discretion, the trial court’s order

on a motion to suppress will not be disturbed.” (Citation and punctuation omitted.)

Logan v. State, 309 Ga. App. 95, 100 (3) (709 SE2d 302) (2011). See also Hanes v.

State, 294 Ga. 521, 524 (3) (755 SE2d 151) (2014) (applying abuse of discretion

standard of review to motion to suppress); Davis v. State, 286 Ga. 74, 77 (3) (686

SE2d 249) (2009) (same).

      In Williams I, the Supreme Court summarized the pertinent facts from the prior

motion hearing and bench trial, “which were either stipulated at trial or are not in

dispute,” as follows:

      On September 22, 2012, Williams was arrested by an officer of the
      Gwinnett County Police Department and charged with DUI and failure
      to maintain lane; the officer had “reasonable articulable suspicion” to
      stop Williams and probable cause to arrest him. Williams was placed in
      custody but was not advised of his Miranda rights. The officer read
      Williams the age-appropriate statutory implied consent notice and
      pursuant to it requested that Williams submit to blood and urine tests.

                                           3
      The officer told Williams that it was “a yes or no question,” and
      Williams verbally responded “yes.” There was no other conversation
      about consent for the testing, i.e., the officer did not ask Williams “if
      [Williams] was willing to freely and voluntarily give a test.” The officer
      “read [Williams] the implied consent and that was pretty much the end
      of it.” It “was an ordinary DUI,” there “were no exigent circumstances,”
      and no search warrant was obtained. Williams was taken to a medical
      center where blood and urine samples were taken for the purpose of his
      criminal prosecution.


(Citation and footnote omitted.) 296 Ga. at 818-19.

      At the September 2, 2015 motion hearing, the arresting officer testified as to

the circumstances surrounding his initial traffic stop of Williams.2 Upon receipt of a

citizen report of a car driving erratically, the officer traveled to the scene where he

observed the left tires of Williams’s car traveling in the oncoming lane of traffic.

After initiating the stop, the officer spoke with Williams, who at first denied having

anything to drink or taking any medications. When Williams stepped out of his car,

he leaned on the vehicle as he walked toward the rear and then leaned against the

trunk as he spoke with the officer. Williams again denied that he used any alcohol or

drugs, and after he fell back against the car’s trunk, Williams told the officer he had


      2
          The record contains no video of the traffic stop.

                                            4
“an equilibrium problem.” The officer testified that Williams seemed very unsteady

on his feet, confused, and his speech was slow, thick, and slurred. When the officer

asked Williams if he was taking any medication for his equilibrium problem, he stated

that he was taking Lortab and another drug.

      The officer asked for consent to “check [Williams] out to see if he was safe to

drive.” According to the officer, Williams seemed confused but appeared to

understand what the officer was saying when he gave his consent. The officer then

began to conduct the standardized field sobriety evaluations, starting first with the

horizontal gaze nystagmus test (HGN). During each of the tests, when the officer

explained the instructions and asked Williams if he understood them, Williams

indicated that he did and appeared to the officer to comprehend what was being said.

      However, during the administration of the HGN test, Williams was unable to

follow the officer’s finger, even after being instructed seven times to do so. The

officer thus was unable to complete the evaluation, but he believed that Williams’s

inability to perform the test demonstrated impairment. The officer also administered

the walk and turn evaluation, but Williams was unable to follow his instructions.

Although the officer told Williams to keep his hands down by his side, Williams

raised them straight out. Williams also was unable to maintain his instructional

                                         5
position, losing his balance three times, and he never even attempted to turn at the

end of his walk. The officer concluded from Williams’s performance on that test that

he had demonstrated seven of the eight total clues indicating impairment. In addition,

the officer performed the one-leg stand evaluation, during which Williams changed

from his right leg to his left leg without instruction to do so. Based on Williams’s

performance, the officer observed three of the four clues indicating impairment. The

officer further attempted to perform the lack of convergence evaluation, but Williams

was unable to follow his finger as instructed, and the officer terminated the

evaluation. However, Williams successfully completed the Romberg evaluation.

      After the tests, the officer told Williams that he was placing him under arrest

for DUI, placed the handcuffs on him, conducted a search of his person, and escorted

him to the back seat of the patrol car. The officer then stood outside the patrol car

with the door open, read Williams the implied consent notice for suspects 21 years

or older before asking for a blood and urine sample. The officer told Williams that

“[i]t’s a yes or no question.” Williams and the officer had no further discussion on the

issue, and the officer never advised Williams of his constitutional rights before




                                           6
Williams gave his consent.3 During this exchange, the officer spoke with Williams

in his normal tone and did not have to raise his voice, put his hands on Williams or

threaten him; rather, Williams was cooperative during the entire encounter and

appeared to the officer to understand what was being said.

      The officer transported Williams to a hospital, where the officer registered

Williams and led him down a hall to the location where the tests were to be

performed. As they walked down the hall, Williams leaned on the officer in order to

keep his balance. The officer seated Williams in a chair, removed the handcuffs, and

“had [him] sign the consent forms” because the hospital would not perform the tests

without the signed forms. The officer could not recall whether the phlebotomist or he

read the consent forms to Williams, but Williams was given a form to look at before

signing. The phlebotomist then drew two vials of blood, and Williams gave a urine




      3
        The parties stipulated to the facts surrounding the reading of the implied
consent notice, including a stipulation that “the implied consent was timely read, age
appropriate, and it was the statutory implied consent notice that the officer was
required to read under Georgia’s implied consent law.”

                                          7
sample without assistance.4 Afterward, the officer put the handcuffs back on Williams

and drove him to jail.

      “The Fourth Amendment of the United States Constitution and Article I,

Section I, Paragraph XIII of the Georgia Constitution both protect an individual’s

right to be free of unreasonable searches and seizures[] and apply with equal force to

the compelled withdrawal of blood, breath, and other bodily substances.” Kendrick

v. State, 335 Ga. App. 766, 768 (782 SE2d 842) (2016). See also Williams I, 296 Ga.

at 819; Cooper v. State, 277 Ga. 282, 285 (III) (587 SE2d 605) (2003). A warrantless

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

showing otherwise.” Williams I, 296 Ga. at 819. Thus, “[w]hen relying on the consent

exception to the warrant requirement, the State has the burden of proving that the

accused acted freely and voluntarily under the totality of the circumstances.”

(Citations and punctuation omitted.) Cooper, 277 Ga. at 291 (VI). In its sole

enumeration of error, the State contends that the trial court erred in determining that

Williams did not actually consent to take the state-administered blood test under the

totality of the circumstances.

      4
        Although Williams gave both a blood and urine sample, he abandoned any
challenge to the urine test and his argument on the motion to suppress focused on the
blood test.

                                          8
      Georgia courts generally have found that a consent to search is voluntary if the

totality of the circumstances show no implicit or explicit use of “fear, intimidation,

threat of physical punishment, or lengthy detention to obtain the consent.” Kendrick,

335 Ga. App. at 769. See also Schneckloth v. Bustamonte, 412 U.S. 218, 228 (II) (B)

(93 SCt 2041, 36 LE2d 854) (1973); Cuaresma v. State, 292 Ga. App. 43, 47 (2) (663

SE2d 396) (2008). In making this determination, we have considered a number of

factors including “prolonged questioning; the accused’s age, level of education,

intelligence and advisement of constitutional rights; and the psychological impact of

these factors on the accused.” (Citation and punctuation omitted.) Kendrick, 335 Ga.

App. at 769. However, “no single factor is controlling.”(Citation omitted.) State v.

Tye, 276 Ga. 559, 560 (1) (580 SE2d 528) (2003). Rather, the trial court “should

consider whether a reasonable person would feel free to decline the officers’ request

to search or otherwise terminate the encounter.” (Citations and punctuation omitted.)

Kendrick, 335 Ga. App. at 769. “Mere acquiescence to the authority asserted by a

police officer cannot substitute for free consent.” (Citations and punctuation omitted.)

Id. “[W]e are required to scrutinize closely an alleged consent to search.” (Citation

and punctuation omitted.) State v. Durrence, 295 Ga. App. 216, 218 (671 SE2d 261)

(2008).

                                           9
      In the order granting the motion to suppress, the trial court first stated that

articulable suspicion supported the traffic stop and that the officer had probable cause

to arrest Williams. The trial court then identified the primary question before it as

“whether or not the Defendant gave actual consent and voluntary consent to the state

administered test,” tracking the Supreme Court’s directive in Williams I to address

the issue of actual consent and the voluntariness of the consent under the totality of

the circumstances.5 296 Ga. at 821. The trial court found that Williams’s

communications with the officer during the field sobriety evaluations indicated that

he was confused, noting Williams’s failure to properly follow the officer’s

instructions on the HGN, walk and turn, and the one-leg stand evaluations. The trial

court found that this evidence brought Williams’s mental capacity into question and

showed that Williams appeared “highly intoxicated.”6 After citing the testimony

regarding the reading of the implied consent notice while Williams was handcuffed



      5
         In fact, the State defined the issue before the trial court in the same manner
in its argument at the September 2, 2015 motion hearing.
      6
         The trial court also found that the officer had testified that Williams
sometimes laid down in his seat while driving. Although we found no testimony from
the officer to that effect, the witness who reported Williams’s driving to police
testified at the bench trial that he saw Williams lean over so far that his head would
disappear from view when he made a driving maneuver such as a turn.

                                          10
and sitting in the back of the patrol car and the events at the hospital, during which

Williams had to lean on the officer for support, the trial court concluded that “[t]he

State was able to show that Williams acquiesced to the officer’s request that he

submit to the state administered blood and urine tests but was unable to show actual

consent.” Accordingly, the trial court ruled that the results of both the urine or blood

tests would not be admissible at trial.

      Although the State argues that the trial court erred in failing to consider all the

factors pertinent to the totality of the circumstances analysis, we are not aware of any

requirement that the trial court expressly address each of these factors in its order,

particularly when the State in carrying its burden of proof failed to present evidence

on these factors. To the contrary, the trial judge acknowledged that he was required

to apply the totality of the circumstances test to the evidence at the September 2

hearing,7 and the trial court’s order states that the court’s findings were based on

Williams’s motion, the parties’ oral arguments, “evidence presented, all matters of

record and the applicable and controlling law.” Accordingly, we cannot say that the

      7
        When Williams’s defense counsel objected to the State’s questions addressing
the performance of the field sobriety tests, the trial court ruled “based on the Supreme
Court’s direction to look at the totality of the circumstances, I think the interaction
between the officer and the Defendant are relevant to the determination we make
today.”

                                          11
trial court failed to consider the totality of the circumstances as presented by the

evidence and directed by Williams I.

      The State argues, however, that the trial court erred in giving too much weight

to Williams’s intoxicated state in its consideration of the motion to suppress, citing

the trial court’s finding that Williams was “highly intoxicated.” However, a

defendant’s level of intoxication may be an appropriate factor for consideration

among the totality of the circumstances in determining the voluntariness of consent.

See State v. Bowman, __ Ga. App. __ (Case No. A16A0555, decided June 7, 2016)

(affirming trial court’s grant of motion to suppress blood tests results where trial court

relied on evidence that defendant was “significantly intoxicated” when he gave his

consent to the test). Although this Court has held in the somewhat analogous situation

of a voluntary waiver of a defendant’s Fifth Amendment rights that mere intoxication

is not sufficient to make a defendant’s statement inadmissible, McNear v. State, 326

Ga. App. 32, 34 (2) (755 SE2d 844) (2014), our Supreme Court has held a high level

of intoxication may be sufficient to support a trial court’s finding that a statement is

involuntary. Clay v. State, 290 Ga. 822, 826 (1) (B) (725 SE2d 260) (2012) (no valid

consent or Miranda waiver when defendant was suffering from after affects of drug-

induced coma). See also State v. Folsom, 286 Ga. 105, 111 (4) (686 SE2d 239) (2009)

                                           12
(considering whether defendant’s use of prescription drugs rendered his statements

involuntary and affirming the trial court’s ruling on the issue). In any event, whether

or not intoxication is a factor among the totality of circumstances, the State must

prove that the defendant voluntarily made a statement to police out of “rational

intellect and free will” in order to present the statement as evidence at trial. (Citations

and punctuation omitted.) McNear, 326 Ga. App. at 34 (2). We see no reason to alter

this standard in the case of voluntary consent to undergo a blood test.

       Here, the trial court found that the State failed to carry its burden. Under the

standard set forth in Hughes, this Court must accept the trial court’s factual findings

unless clearly erroneous and must construe the evidentiary record in the light most

favorable to the factual findings and judgment of the trial court. 296 Ga at 746.8

Based on this standard of review, we cannot say that the evidence demanded a finding

contrary to the trial court’s ruling and thus we find no abuse of discretion by the trial

court in granting Williams’s motion to suppress. See Durrence, 295 Ga. App. at 218


       8
         We have no independently verifiable evidence such as a videotape to lessen
the deference due to the trial court in making this determination. See State v. Reid, __
Ga. App. __ (Case No. A16A1237, decided April 22, 2016) (relying on videotape of
traffic stop to reverse grant of motion to suppress); State v. Depol, 336 Ga. App. 191
(784 SE2d 51) (2016) (same). Compare Bowman, __ Ga. App. at __ (finding that
videotape supported trial court’s findings).

                                            13
(“[I]n the absence of evidence of record demanding a finding contrary to the judge’s

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

suppress.”) (citation and punctuation omitted; emphasis in original); Kendrick, 335

Ga. App. at 772 (affirming denial of motion to suppress under the standard of review,

“affording appropriate deference to the trial court that heard the testimony first-

hand”).9

      Judgment affirmed. Miller, P. J., and McFadden, J., concur.




      9
       Even though the officer testified that he believed Williams understood what
was being said to him during the encounter,

      [t]he trier of fact is not obligated to believe a witness even if the
      testimony is uncontradicted and may accept or reject any portion of the
      testimony. . . . [Thus,] a rational trier of fact can choose to reject even
      “undisputed” testimony. . . . Factors such as demeanor, contradictory or
      inconsistent statements and evidence that an officer had “ulterior
      motives” can all lead a finder of fact to disregard testimony by an
      officer. . . .


(Citation omitted.) Brown v. State, 293 Ga. 787, 804 (3) (b) (2) (750 SE2d 148)
(2013).

                                          14
