                             FOURTH DIVISION
                                  RAY, 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


                                                                    February 4, 2016




In the Court of Appeals of Georgia
 A15A1724. THE STATE v. OYENIYI.

      RAY, Judge.

      The State appeals from the trial court’s order granting Adeshye Oyeniyi’s

motion to suppress the results of a State-administered chemical test of his breath

obtained at the time of his arrest for driving under the influence. The State contends

that the trial court erred in excluding the test results based on its finding that OCGA

§ 40-5-67.1 (b) (2), Georgia’s implied consent notice for suspects who are age 21 or

over (“implied consent notice”), is inaccurate, misleading, and overstates the penalty

for refusing to submit to the State-administered test. For the reasons that follow, we

reverse.

      At the hearing on the motion to suppress, the facts surrounding Oyeniyi’s arrest

for driving under the influence and the police officer’s verbatim reading of the
applicable version of the implied consent notice were not in dispute. Rather, the basis

for the motion to suppress was narrowed solely to the issue of whether the implied

consent notice is misleading and overstates the penalty for refusing to take the State-

administered test.

      Where the evidence at a hearing on a motion [to suppress] is
      uncontroverted, and no issue exists regarding the credibility of
      witnesses, we review the trial court’s ruling to ensure that there was a
      substantial basis for it. The trial court’s application of the law to the
      undisputed facts is subject to de novo review.


(Punctuation and footnote and omitted.) State v. Barnard, 321 Ga. App. 20, 20 (740

SE2d 837) (2013).

      On March 30, 2014, a Clayton County police officer arrested Oyeniyi for

driving under the influence, following too closely, and no proof of insurance. After

verifying that Oyeniyi was over the age of 21, the officer read verbatim to Oyenyi the

implied consent notice contained in OCGA § 40-5-67.1 (b) (2). The officer asked

Oyeniyi if he had any questions concerning the notice, and he indicated that he did

not. Oyeniyi agreed to submit to a State-administered chemical test of his breath for

the presence of alcohol, and the results of that test indicated a alcohol concentration

of .157 grams.

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      OCGA § 40-5-67.1 (b) (2) provides, in pertinent part, as follows:

      Georgia law requires you to submit to state administered chemical tests
      of your blood, breath, urine, or other bodily substances for the purpose
      of determining if you are under the influence of alcohol or drugs. If you
      refuse this testing, your Georgia driver’s license or privilege to drive on
      the highways of this state will be suspended for a minimum period of
      one year.


(Punctuation omitted; emphasis supplied).

      At the hearing on the motion to suppress, Oyeniyi challenged the above portion

of the statute. Specifically, he argued that the implied consent notice is misleading

and overstates the penalty for a refusal because a minimum one-year suspension is not

a certainty. In support of his argument, Oyeniyi pointed out that other portions of the

statute, of which he was not advised, contemplate scenarios in which the suspension

could be rescinded or terminated in less than the stated minimum one-year period.

(See OCGA § 40-5-67.1 (g) (1) – (3), which contemplates an administrative review

of the one-year suspension; OCGA § 40-5-67.1 (h), which provides for judicial

review of the administrative decision; and OCGA § 40-5-67.1 (g) (4), which provides

for early termination of the suspension if the driving under the influence charge is

disposed of other than by a conviction or plea of nolo contendere). The trial court


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granted the motion to suppress, concluding that the implied consent notice is

“inaccurate, misleading, and overstate[s] the penalty for refusing to submit to the

State’s test” because it informed Oyeniyi that his driver’s license “‘would be

suspended for a minimum of one year’ if he refused, when it was only true that [it]

might[.]” The trial court further concluded that the current wording of the implied

consent notice “deprived [Oyeniyi] of the ability to make an informed decision as to

whether he should refuse or consent” to the State-administered test.

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

granting the motion to suppress on this basis. We agree with the State.

      Our Supreme Court has acknowledged that the right to refuse to submit to

state-administered chemical testing for alcohol or drugs is not a right of constitutional

magnitude, but is one created by legislative enactment, and that due process rights are

not implicated when the statutory implied consent notice does not inform the driver

of all possible outcomes of such a refusal. See Sauls v. State, 293 Ga. 165, 167 (744

SE2d 735) (2013). Thus, in regard to the sufficiency of the implied consent notice,

“[t]he determinative issue . . . is whether the notice [that was] given was substantively

accurate so as to permit [Oyeniyi] to make an informed decision about whether to

consent to testing.” (Punctuation and footnote omitted.) Barnard, supra at 23 (1).

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      Here, the police officer testified that he read verbatim to Oyeniyi the implied

consent notice for suspects 21 years of age or over pursuant to OCGA § 40-5-67.1 (b)

(2), and a copy of the officer’s implied consent card identical to the one he read to

Oyeniyi was admitted in evidence. The notice provides that a suspect’s Georgia

driver’s license will be suspended if he refuses to submit to testing. Furthermore,

OCGA § 40-5-67.1 (d) provides, in pertinent part, that when a person under arrest for

driving under the influence refuses to submit to a chemical test at the request of the

law enforcement officer and the officer submits a report to the Department of Driver

Services stating that he or she has reasonable grounds to believe the arrested person

had been driving under the influence and that the person refused to submit to the

State-administered test, “the department shall suspend the person’s driver’s license,

permit, or nonresident operating privilege for a period of one year . . . , subject to

review as provided for in this chapter.” (Emphasis supplied.)

       Thus, the statute provides for a one-year suspension for a refusal. The fact that

this suspension may be subject to administrative or judicial review does not mean that

the implied consent notice is misleading or overstates the consequence for such

refusal. The legislative intent behind the refusal provision of the implied consent

notice is to inform drivers “of the potentially most serious consequence of refusal of

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testing,” Sauls, supra at 168, and the one-year suspension is one such consequence.

We can find no authority for the proposition that, in addition to the notice of the one-

year suspension, a suspect must also be advised of all conceivable outcomes or

possible factors that may affect that one-year suspension.

      Although not directly on point, we find our holding in Gutierrez v. State, 228

Ga. App. 458 (491 SE2d 898) (1997), to be instructive. In Gutierrez, the defendant

contended that the implied consent warning given to him was “misleading, coercive,

deceptive, and misstated the true and legitimate consequences of both the refusal and

submittal” to the test because the notice informed him that his license “would be

suspended if he refused to submit to chemical tests and may be suspended if he

submitted and results indicated a blood-alcohol concentration of .10 grams or more.”

(Punctuation omitted.) Id. at 459 (2). He argued that the suspension was actually

dependent on the officer’s compliance with another portion of OCGA § 40-5-67.1

which is not part of the implied consent notice, specifically subsection (f), which

requires the officer to follow proper administrative procedures in order to trigger the

suspension. We upheld the sufficiency of the implied consent notice and affirmed the

denial of the defendant’s motion to suppress, finding that a license suspension “is a

true and legitimate consequence of refusing to submit to . . . the test[,]” and that

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“[t]here is no unlawful coercion where the officer merely informs the arrestee of the

permissible range of sanctions that the [S]tate may ultimately be authorized to

impose.” (Citation and punctuation omitted.) Id. See also Singleterry v. State, 227 Ga.

App. 155, 155 (3) (489 SE2d 42) (1997) (holding that the implied consent warning

given to the defendant was not misleading or coercive because the validity of the

implied consent notice is not contingent upon other administrative aspects of OCGA

§ 40-5-67.1).

         Here, the statute clearly authorizes a one-year suspension for a refusal to

submit to the State-administered tests. As the implied consent notice given to Oyeniyi

recited the exact language of OCGA § 40-5-67.1 (b) (2) and correctly informed him

that the State would be authorized to suspend his license for one year as a

consequence of a refusal, the implied consent notice given to Oyeniyi was not

misleading or an overstatement of the length of suspension authorized by law.

Accordingly, the trial court erred in granting Oyeniyi’s motion to suppress on this

basis.

         Judgment reversed. McMillian and Mercier, JJ., concur.




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