                            THIRD DIVISION
                           ELLINGTON, P. J.,
          BETHEL, J., and SENIOR APPELLATE JUDGE PHIPPS

                    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


                                                                       May 14, 2018




In the Court of Appeals of Georgia
 A18A0642. YEONG SIK OH v. THE STATE.

      BETHEL, Judge.

      Yeong Sik Oh appeals from his conviction on one count of driving under the

influence of alcohol. He argues that the trial court erred by denying his motion to

suppress evidence from a traffic stop because the officer conducting the stop did not

advise him of his Miranda rights before he made incriminating statements and

submitted to a portable breathalyzer test, because his arrest was made without

probable cause, and because the officer failed to obtain his consent to perform an

alcohol breath test following his arrest. For the reasons set forth below, we find no

error in the trial court’s denial of Oh’s motion to suppress and affirm his conviction.
      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. And
      significantly, to the extent that the controlling facts are undisputed
      because they are plainly discernable from the patrol car-mounted video
      recording as they are in this case, we review those facts de novo.
      Although we owe substantial deference to the way in which the trial
      court resolved disputed questions of material fact, we owe no deference
      at all to the trial court with respect to questions of law, and instead, we
      must apply the law ourselves to the material facts. This includes legal
      determinations based upon the totality of the circumstances.


State v. Depol, 336 Ga. App. 191, 191-92 (784 SE2d 51) (2016) (citations and

punctuation omitted).

      In this case, the evidence presented at the suppression hearing, including video

and audio recorded from a police car patrol camera, showed that in the early morning

hours of December 31, 2015, Oh was driving his vehicle when he was stopped by a

police officer who had noticed that a brake light was malfunctioning. The officer

followed Oh’s vehicle for a short distance and then initiated his blue lights, which

prompted Oh to pull his vehicle into a nearby parking lot. The officer had not

observed any evidence of impairment at that point, and other than the failing brake

light had not observed any other traffic violations.


                                          2
      The officer approached the driver’s side of the vehicle and began speaking with

Oh. During that conversation, the officer told Oh that he smelled burned marijuana

coming from the vehicle. Oh replied that he had smoked marijuana in the vehicle a

few days before. The officer asked Oh to exit his vehicle and had him stand behind

the car until a backup officer arrived. At that point, the officer planned to search the

car based on the marijuana he had smelled. In response to a question from the officer,

Oh denied that he had consumed alcohol that evening.

      Later, while Oh was standing outside the vehicle, the officer smelled alcohol

on Oh’s breath. Oh again denied that he had been drinking but then admitted to the

officer that he had consumed one beer about an hour earlier in the evening with a

meal. At that time, the officer also observed that Oh’s eyes were red and watery.

      The officer commenced a DUI investigation of Oh. The officer explained each

of the evaluations he was going to ask Oh to participate in and asked if Oh had any

physical or medical conditions that would prevent him from participating. Oh

indicated that he was able to participate and did not mention any physical concerns.

      The officer had Oh perform a battery of standardized field sobriety tests,

beginning with a horizontal gaze nystagmus (HGN) test. The officer observed six out

of six clues on the HGN test, consistent with conditions of impairment. The officer

                                           3
then instructed Oh to take a test in which he was instructed to take nine steps with his

arms to his side and then turn around (the “walk and turn”). The officer demonstrated

the actions he was asking Oh to perform before instructing Oh to proceed. The officer

noted that Oh took ten steps instead of nine, failed to keep his balance during the

instructional phase of the test, made an improper turn, and had to use his arms to

maintain his balance. The officer testified that observing two or more of these clues

during a walk and turn indicates impairment. The officer then asked Oh to stand on

one leg, which he demonstrated for Oh. Oh performed this test without signaling any

clues of impairment.

      Based on the preliminary sobriety tests, the officer told Oh that he believed he

was impaired due to alcohol consumption and offered him a portable breath test

(PBT). The officer then accused Oh of lying about the amount of alcohol he had

consumed that evening, asking him whether he had in fact consumed more alcohol

than he initially claimed. Oh initially denied that he had lied to the officer or

consumed more alcohol than he claimed, but he later admitted that he had consumed

four beers earlier in the evening. After some discussion, Oh blew into the PBT, which

generated, according the officer, a “really high number.” The officer testified that he

did not believe the test was accurate because “[i]t was an absurd number, like alcohol-

                                           4
poisoning kind of number.” Based on his belief that the initial test was not consistent

with his observations of Oh, the officer asked Oh to blow into the device a second

time, which yielded a positive test for alcohol. The officer later testified that Oh’s

behavior and responses to the field sobriety tests were more consistent with

consumption of four beers than a single beer.

      Based on these observations, the officer placed Oh under arrest. The officer

then read the Georgia Implied Consent Notice for Subjects Age 21 and Over to Oh

and asked whether he consented to a breath test. Oh asked several questions about the

warning and asked the officer to read it again, which prompted the officer to again

read the consent warning to Oh and ask if he would submit to a breath test. The

officer also accused Oh of stalling. Several minutes later, after asking additional

questions, Oh provided his consent for the breath test. Oh submitted to the breath test

at police headquarters, the results of which were consistent with the evidence of

impairment the officer had observed during the traffic stop. Oh did not request an

additional test. The officer described his encounter with Oh as “pleasant” and noted

that he had not had to raise his voice with Oh during the stop. The officer also

testified that he never told Oh that he had to take the breath test. His testimony was

consistent with the conversation recorded by the dashboard camera.

                                          5
      Oh was charged with one count of DUI less safe1 and one count of DUI per se

(driving with unlawful alcohol concentration).2 Oh moved to suppress all evidence

from the traffic stop, claiming violations of his Fourth, Fifth, and Sixth Amendment

rights. The trial court denied Oh’s motion. Following a bench trial, Oh was acquitted

of the DUI less safe charge but was convicted of DUI per se. This appeal followed.

      1. Oh first argues that he was in custody when he provided breath samples into

the PBT and admitted to consuming four beers. He argues that because he had not

received a Miranda warning from the officer before providing the breath samples or

making those statements, that evidence should be suppressed. We disagree.

      An individual must be advised of his Miranda rights, including his right
      against self-incrimination, only after being taken into custody or
      otherwise deprived of his freedom of action in any significant way.
      Alco-sensor and other field sobriety tests given to a person under
      custodial arrest are inadmissible where administration of the tests has
      not been preceded by a Miranda warning. Although a motorist is
      deprived of his freedom of action during a traffic stop, such a
      deprivation does not always trigger the rights set forth in Miranda.
      Instead, the test for determining whether a person is ‘in custody’ at a
      traffic stop is if a reasonable person in the suspect’s position would have


      1
          OCGA § 40-6-391 (a) (1).
      2
          OCGA § 40-6-391 (a) (5).

                                          6
      thought the detention would not be temporary. Whether one is in
      custody for Miranda purposes is a mixed question of law and fact, and
      the trial court’s determination will not be disturbed unless it is clearly
      erroneous.


State v. Padidham, 310 Ga. App. 839, 840-41 (1) (714 SE2d 657) (2011) (citations

and punctuation omitted).

      In Padidham, the suspect had been stopped for speeding. Id. at 839. He

submitted to several field sobriety tests, which prompted the officer to call for a

backup officer to bring an alco-sensor to the scene. Id. While waiting for the officer

to arrive, the suspect was permitted to return to his own car. Id. The officer told him

that he had stopped him for speeding, that he was going to receive a ticket, and that

he thought that the suspect was too intoxicated to drive, which he was going to verify.

Id. The officer administered the test eight to ten minutes later, which showed the

presence of alcohol. Id. This Court reversed the trial court’s grant of the suspect’s

motion to suppress, finding that he was not in custody at the time he provided the

breath samples. Id. at 841 (1). In so doing, we noted that the officer had not told the

suspect that he would be arrested as he awaited the backup officer and the alco-

sensor. Id.

      As the trial court noted, the facts of this case closely mirror those in Padidham.

                                          7
The officer indicated to Oh that he believed that he was impaired before

administering the PBT. This is similar to the statement in Padidham in which the

officer indicated that he was going to verify his belief that the driver was too

intoxicated to drive.

      Critically, as in Padidham, the officer also never indicated to Oh that he would

be under arrest regardless of the outcome of the test or whether he agreed to submit

to the test at all. Before agreeing to the test, Oh asked the officer whether he would

be “locked up” if he refused to blow into the PBT. The officer did not answer the

question directly, but instead noted his belief that what he had seen to that point led

him to believe that Oh was impaired by alcohol. This is essentially a restatement of

the officer’s earlier statement as to why he was asking Oh to take the test. Moreover,

in a prolonged discussion before administering the test, the officer went on to

emphasize that the PBT is used to rule out drug use and medical conditions as sources

of intoxication and to see if his observations of Oh’s behavior to that point were

consistent with impairment due to alcohol consumption. We find nothing in those

statements that would have given Oh the impression at time that his detention was

more than temporary.



                                          8
      Accordingly, the trial court’s determination that Oh was not in custody at the

time he took the PBT and told the officer he had consumed four beers that evening

was not clearly erroneous. Consequently, no Miranda warning was required.

      2. Oh next argues that the trial court erred in denying his motion to suppress

because the officer lacked probable cause to place Oh under arrest. Oh principally

relies upon this Court’s decision in State v. Batty3 to argue a lack of evidence

supporting probable cause to arrest Oh. We disagree.

      In Batty, the officer initiated a traffic stop after noticing the defendant making

an illegal turn and then following a vehicle too closely. 259 Ga. App. at 431. The

officer noted the smell of alcohol coming from the vehicle, and the defendant

thereafter admitted to having “a couple of beers.” Id. An alco-sensor test showed a

positive result for the presence of alcohol, prompting the officer to administer several

field sobriety tests, all of which the defendant passed. Id. The officer nonetheless

placed the defendant in custody for DUI less safe, and the defendant submitted to a

state-administered alcohol breath test while in custody. Id. This Court upheld the trial

court’s grant of the defendant’s motion to suppress, noting that the officer never



      3
          259 Ga. App. 431 (577 SE2d 98) (2003).

                                           9
articulated any facts supporting a belief that the defendant was a less safe driver due

to the presence of alcohol. Id.

      This case is plainly distinguishable from Batty on a number of fronts. First,

according to the officer’s testimony, the officer noted Oh’s red and watery eyes and

the smell of alcohol on his breath, and two of the initial tests administered by the

officer yielded evidence of impairment as did Oh’s second blow into the PBT. Each

of these items supported an inference that Oh was impaired.

      In this case, the officer indicated that he arrested Oh for “driving under the

influence” and noted the results of the field sobriety tests he had conducted led him

to believe that he was a less-safe driver. The standards for probable cause a DUI per

se arrest are different from those for a DUI less safe arrest, but in this case the

evidence presented at the suppression hearing established that the officer had

probable cause to arrest Oh for both offenses.

      An individual is guilty of DUI-less safe where he or she operates a motor

vehicle while “[u]nder the influence of alcohol to the extent that it is less safe for the

person to drive.” OCGA § 40-6-391 (a) (1). As this Court discussed in State v. Rish,4

if the evidence shows only that a driver is intoxicated and does not show that his

      4
          295 Ga. App. 815, 816 (673 SE2d 259) (2009).

                                           10
consumption of alcohol has impaired his ability to drive, there is no probable cause

to arrest for DUI-less safe. “Impaired driving ability depends solely upon an

individual’s response to alcohol. Because individual responses to alcohol vary, the

presence of alcohol in a defendant’s body, by itself, does not support an inference that

the defendant was an impaired driver.” Rish, 295 Ga. App. at 816-17 (citation

omitted). However,

      a conviction under OCGA § 40–6–391 (a) (1) does not require proof that
      a person actually committed an unsafe act while driving; it only requires
      sufficient evidence to authorize a finding, beyond a reasonable doubt,
      that the defendant was operating or in actual physical control of a
      moving vehicle while under the influence of alcohol to the extent that
      it was less safe for him to drive. Circumstantial evidence may be
      sufficient to meet this burden of proof.


Bennett v. State, 313 Ga. App. 465, 466 (722 SE2d 94) (2011) (citation omitted).

      In Bennett, this Court held that the State presented sufficient evidence to

support a DUI less-safe conviction where the officer testified that, during the traffic

stop, he noticed the smell of alcohol on the suspect’s breath, that his speech was

slurred, and that his eyes were bloodshot. Id. at 465-66. Additionally, the defendant

admitted to drinking earlier in the evening and failed an HGN test. Id. He also

submitted to an alcosensor test which registered positive for the presence of alcohol.

                                          11
Id. Importantly, in Bennett, the stop occurred at a police roadblock. Id. The officer

had not observed the suspect driving unsafely, and he had not driven at an unsafe

speed or made an attempt to evade the roadblock. Id. at 466. Nevertheless, this Court

affirmed his conviction for DUI less-safe, noting that the officer could, based on his

training and experience, give opinion testimony as to the defendant’s sobriety and

whether he was under the influence of alcohol to the extent that he was less safe to

drive. Id. See also Tanner v. State, 225 Ga. App. 702, 702-03 (484 SE2d 766) (1997).

      In contrast,

      a conviction for DUI-per se does not require proof that it was less safe
      for the defendant to drive. Rather, an individual is guilty of DUI-per se
      where, within three hours after driving a motor vehicle, tests show that
      his blood alcohol concentration is 0.08 grams or more. OCGA §
      40-6-391 (a) (5). Thus, probable cause to arrest for DUI-per se exists
      where an officer has a reasonable basis to believe that: (1) the suspect
      has, within the previous three hours, been in physical control of a
      moving vehicle; and (2) the suspect’s current blood alcohol
      concentration is greater than 0.08 grams.


Rish, 295 Ga. App. at 817 (citations omitted).

      In this case, as in Bennett, Oh admitted to consuming alcohol earlier in the

evening, and two field tests showed clues of impairment. The PBT showed the


                                         12
presence of alcohol and was “consistent” with the result the officer suspected based

on the two earlier field sobriety tests that Oh had failed. Because of the reading on the

PBT and the physical manifestations of impairment the officer observed when Oh

submitted to the various field sobriety tests, the officer had probable cause to arrest

Oh for DUI less-safe.

      Moreover, although the specific reading on the PBT was not admitted into

evidence at the suppression hearing, the officer’s characterization of the reading on

the test, in conjunction with the other evidence in the record, established a reasonable

probability that, at that time, Oh was in violation of OCGA § 40-6-391 (a) (5) and

gave the officer probable cause to place him under arrest for DUI per se. See Rish,

295 Ga. App. at 817-18. Oh’s enumeration therefore fails.

      3. Finally, Oh argues that the results of Oh’s state-administered chemical breath

test, taken at police headquarters following his arrest, should have been suppressed

because the State did not obtain Oh’s actual consent for the test. We disagree.

      At the time the trial court considered Oh’s motion to suppress (and at the time

Oh filed his notice of appeal in this case), the Supreme Court had not yet issued its




                                           13
decision in Olevik v. State, 302 Ga. 228 (806 SE2d 505) (2017).5 In Olevik, the

Supreme Court determined that a breath test provided by a DUI suspect after having

been read the age-appropriate Georgia implied consent warning was not subject to

analysis under the Fourth Amendment but was rather subject to a self-incrimination

analysis under the Fifth Amendment and Article I, Section I, Paragraph XVI of the

Georgia Constitution. Id. at 232-46 (2). Under that provision of the Georgia

Constitution, a suspect in these circumstances is protected from compelled acts of self

incrimination, which includes protection against being compelled to submit to a

breath test given after receiving the implied consent warning. Id. Thus, a defendant

has a constitutional right to refuse such testing. Id. at 246 (2).

      As the Supreme Court went on to discuss on Olevik,

      whether a defendant is compelled to provide self-incriminating evidence
      in violation of Paragraph XVI is determined under the totality of the
      circumstances. Determining the voluntariness of (or lack of compulsion
      surrounding) a defendant’s incriminating statement or act involves
      considerations similar to those employed in determining whether a
      defendant voluntarily consented to a search. We have said that the
      voluntariness of a consent to search is determined by such factors as the

      5
       The trial court’s order denying Oh’s motion to suppress was issued on March
17, 2017. Oh’s notice of appeal was filed on May 11, 2017. Olevik was issued by the
Supreme Court on October 16, 2017.

                                           14
      age of the accused, his education, his intelligence, the length of
      detention, whether the accused was advised of his constitutional rights,
      the prolonged nature of questioning, the use of physical punishment, and
      the psychological impact of all these factors on the accused. In
      determining voluntariness, no single factor is controlling. Just as the
      voluntariness of consent to search includes an assessment of the
      psychological impact of all the factors on a defendant, a significant
      factor in a due process inquiry is whether a deceptive police practice
      caused a defendant to confess or provide an incriminating statement.
      And although 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.


Olevik, 302 Ga. at 251-52 (3) (b).

      Critical to the matter before us, the Supreme Court also noted that “the relevant

factors [used] to determine the voluntariness to consent to search, are [the same

factors] used in determining whether an incriminating act or statement was

voluntary.” Id. at 252 (3) (b). Thus, even though the trial court in Olevik had analyzed

the suspect’s alleged consent to a breath test under a Fourth Amendment

voluntariness of consent to search standard, the same factors were to be applied in

determining whether an incriminating act was made voluntarily. Id. Thus, in this case,

although the presentation of evidence by the State and Oh (and the trial court’s


                                          15
consideration of it) was made under the Fourth Amendment rubric announced by the

Supreme Court in Williams v. State, 296 Ga. 817 (771 SE2d 373) (2015), we are not

precluded from reviewing the trial court’s determinations as to the voluntariness of

Oh’s act of submitting to the breath test because the trial court would have applied

the same factors in its analysis had it been aware that challenges to the breath test are

properly considered under Olevik rather than Williams.

      We turn, then, to a de novo review of the trial court’s determination that Oh’s

act of submitting to the breath test was voluntary. Depol, 336 Ga. App. at 192. In this

case, Oh suggests he was confused by the language of the implied consent warning,

noting that he asked the officer to read it multiple times. He also noted that the officer

became frustrated with him and that the officer “emphatically and sternly told [Oh]

that he was stalling.” Oh argues that the officer’s statements pressured him to supply

a yes or no answer to the officer’s question as to whether he would consent to testing.

Oh contends that his questions and failure to provide a direct response should have

been construed as a refusal to consent. Oh also argues that the presence of a backup

officer intimidated him during the time he was determining how to respond to the

consent warning.



                                           16
      Under the factors set forth in Olevik, we disagree with Oh that the facts

surrounding his response to the consent warning indicate his consent to testing was

not voluntarily given. Oh was 24 years old when this incident occurred, and the

officer observed that, in light of the roadside conversation he had with Oh that

evening, Oh appeared to be a person of at least average intelligence. The traffic stop

lasted just under 40 minutes, which in light of the number of tasks performed by the

officer, did not appear to be unreasonable or needlessly extended at any point. Oh was

never physically punished or threatened with violence, and we agree with the trial

court’s observation that nothing in the record, including our review of the dashcam

video of the stop, supports an inference that Oh suffered any sort of negative

psychological impact as a consequence of the DUI stop and the officer’s on-site

investigation, including any influence the presence of backup officers may have had

on his decision-making.

      Moreover, despite Oh’s argument to the contrary, the officer made no effort to

deceive Oh into consenting to the test and, in fact, went to some length to clarify Oh’s

choice in the matter, including reading the consent warning to him twice. The officer

clarified that the warning called for a “yes or no” answer to the “will you submit”

question. The video of the incident also indicates that the officer did not raise his

                                          17
voice to Oh, remaining calm and professional with Oh throughout their discussion

regarding Oh’s response to the consent warning. Moreover, although Oh’s questions

are consistent with his claim on appeal that he did not initially understand the consent

warning, his later consent to testing after the officer’s repeated reading of the warning

and truthful answers to Oh’s questions leads us to reject this argument. The choice

before Oh may have been an unpleasant one, but the record does not support an

inference that he did not understand what he was being asked to decide or that he was

pressured into consenting to the test.

      Therefore, in light of the totality of the factors considered above, we agree with

the trial court that Oh’s consent to the breath test following the implied consent

warning was voluntarily given. See State v. Council, 343 Ga. App. 583, 586 (807

SE2d 504) (2017) (consent given voluntarily when, among other factors, officer read

consent warning multiple times, patiently and calmly answered suspect’s questions,

and suspect appeared to understand and respond to questions). The trial court did not

err in denying Oh’s motion to suppress. Accordingly, we affirm his conviction.

      Judgment affirmed. Ellington, P. J., and Senior Appellate Judge Herbert E.

Phipps, concur.



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