DPS Legal Review

Georgia Court of Appeals

TRIAL COURT MUST USE DAUBERT STANDARD TO ASSESS OFFICER’S QUALIFICATIONS TO TESTIFY ABOUT HGN FIELD SOBRIETY TEST

On November 20, 2021, two callers contacted the Kennesaw Police Department (“KPD”) about “a black Ford truck impeding traffic.” Upon arriving at the scene, KPD Officer Redvine and a trainee officer spotted the Ford truck idling “in the middle of Kennesaw 75 Parkway.” Officer Redvine directed the trainee officer to make contact with the driver while Redvine guided other motorists around the truck. Shortly thereafter, both Officer Redvine and the trainee approached the truck, in which Newman, the driver, seemed to be asleep in the driver’s seat.

The officers knocked on the driver’s side window and asked Newman to exit the truck. In response, a seemingly disoriented Newman “rolled up the window instead[,]” which prompted Officer Redvine to knock on the truck’s window again. This time, Newman responded by rolling down the window, at which point “Officer Redvine reached in Newman’s vehicle, opened the door, and ordered Newman to exit the truck.”

Officer Redvine wanted Newman out of the truck because, based on his experience, “there have been people who have fallen asleep at the wheel, woken up and just taken off[.]” As Newman got out of the truck, Officer Redvine and the trainee officer “questioned him about his alcohol consumption and his general condition.” Officer Redvine noted Newman’s slurred speech, glassy eyes, and “an odor of alcohol on his person[.]”

Officer Hubbartt, KPD, arrived at the scene about three to five minutes later and assumed control of the investigation. Hubbartt observed “that

Newman had slurred speech, emitted an odor of alcohol, and had glassy, watery eyes.” Newman admitted to having drunk alcoholic beverages earlier in the day. After Newman agreed, Officer Hubbartt administered three standardized field sobriety tests and had Newman take a portable breath test: “Newman showed six out of six clues on the HGN, five clues of impairment on the walk and turn, three out of four clues on the one leg stand, and blew a positive result for alcohol on the portable breathalyzer.”

At this point, Officer Hubbartt arrested Newman for DUI and read Newman the Georgia implied consent notice for suspects age 21 or over, requesting a blood test. Newman responded “in rapid succession, consented to have his blood tested, withdrew his consent, and then gave his consent again.” Hubbartt’s bodycam footage included Newman saying:

I have to submit to that right? … But I’m trapped if I say one or the other … You already have me in the back of a car … I guess I’ll submit to yes because I mean I’m sitting in the back of the car now … I guess it doesn’t really matter, it doesn’t matter from what that says. Sure, I will submit to whatever that says .. because the fact is … [.]

(Note: Per Officer Hubbartt’s bodycam footage, he read the implied consent warning to Newman “approximately 17 minutes after he arrived at the scene.”)

A nurse at the Acworth City Jail drew Newman’s blood, which was sent to the GBI crime lab for testing. Newman never requested an independent test of his blood, breath, or urine.

On December 2, 2021, Newman’s attorney “sent a letter to [the] GBI advising that Newman was withdrawing ‘any and all assumed or purported consent to blood testing and blood analysis,’ and demanding return or destruction of the blood sample.” In response, the GBI “informed Newman that his consent could not be withdrawn.” The GBI’s test of Newman’s blood indicated a blood alcohol concentration of 0.156. Newman was subsequently charged with DUI, per se, alcohol; DUI less safe, alcohol; impeding the flow of traffic; and failure to maintain lane.

Newman’s attorney

iled motions in limine and to suppress the blood test results, challenging, among other things, whether officers had reasonable suspicion to stop and detain him, whether Officer Hubbartt had reasonable suspicion to perform field sobriety tests, whether Officer Hubbartt had probable cause to arrest Newman, whether Newman gave consent and/or withdrew consent for the blood draw, and the constitutionality of the State of Georgia’s implied consent scheme. After a hearing, Newman filed an additional memorandum in support of his motion to suppress. At a second hearing at which no additional evidence was presented, the trial court entered an order denying the motions.

Newman filed an application for interlocutory appeal, which the Georgia Court of Appeals granted. The following summary discusses, in turn, each of Newman’s four arguments on appeal.

1. Newman’s Constitutional Challenges

Newman contended:

that the trial court erred in denying his motion to suppress on the basis that he consented to the blood draw without first addressing his constitutional challenges to Georgia’s implied consent laws. Newman asserts that the trial court “misunderstood the law and [Newman’s] constitutional challenges as being based solely on the argument that [Newman’s] consent to a blood draw was unconstitutional as it was coercive because [Newman] was placed at risk of losing his license.”
(Emphasis added.)

In the trial court, Newman argued “‘that the State’s implied consent scheme is unconstitutional on its face and as applied and that his consent to a blood draw was unconstitutional as it was coercive[.]’” In its order denying Newman’s pretrial motions, however, the trial court “concluded that ‘if [Newman] did voluntarily consent, then there is no need to evaluate [Newman’s] constitutional challenges.’” Therefore, the Court of Appeals determined that there were no constitutional issues properly before the Court for its consideration.

2. Reasonable Articulable Suspicion

Newman argued: (1) “that the trial court erred in finding that the trainee officer had reasonable articulable suspicion to detain him and that he did not unlawfully prolong the traffic stop[;]” and (2) “that the State failed to prove that Officer Redvine was diligent in pursuing the mission of the stop because Officer Redvine ‘unlawfully trespassed inside’ his vehicle when Officer Redvine reached inside the vehicle, grabbed the door handle, and opened Newman’s door before ordering him to exit the vehicle.”

In a 2008 decision, the Georgia Court of Appeals held: “If a driver is impeding traffic, an officer has reasonable grounds to conduct a traffic stop.” As the Court held in a 2023 decision, however, “An investigatory stop of a vehicle . . . ‘cannot be unreasonably prolonged beyond the time required to fulfill the purpose of the stop.’”

Although Newman argued that the trainee officer lacked the requisite reasonable articulable suspicion to detain him, Newman did not “challenge the trial court’s conclusion that Newman’s act of impeding traffic provided the officers with reasonable grounds to conduct a traffic stop.” Therefore, the Court of Appeals explained, the officers were “permitted to order Newman out of the vehicle.” (In a 2013 decision, the Court held that “as an extension of the constitutionally valid detention resulting from the traffic stop, an officer can order the driver and passengers out of the vehicle[.]”)

The Court noted that Officer Redvine “approached the driver’s side of the truck only seconds after the trainee officer and saw that Newman appeared to be asleep inside the truck with it still running.” The Court also pointed out that, once Newman woke up, he “ignored the officers’ knocks and requests to exit the vehicle, instead choosing to roll up his window.” The Court reasoned:

Accordingly, under the totality of the circumstances – including Officer Redvine’s observation that Newman was asleep at the wheel, Newman’s behavior when asked to roll down his window and exit the vehicle, and Officer Redvine’s prior experience with DUI suspects – we conclude that Officer Redvine’s action of opening Newman’s truck door and ordering that Newman exit the vehicle was supported by reasonable articulable suspicion.

3. Blood test and Consent

Newman claimed “that the trial court erred in finding that [he] consented to the blood test because the implied consent notice was coercive and because any purported consent was later withdrawn.” The Court of Appeals used a “totality of the circumstances” test to determine whether Newman voluntarily consented to the blood test.

In 2016, the Court concluded that “[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.” Additionally, in 2017 the Supreme Court of Georgia opined that other factors to consider when assessing voluntariness included “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.”

Although Officer Hubbartt testified that he read Newman the implied consent notice for suspects ages 21 and over word for word, Newman alleged that “the implied consent notice was itself coercive” and that the officer “improperly advised him that his only options under the implied consent were ‘yes’ and ‘no’ without advising him that he could say yes and receive an independent test.” The Court wrote:

There is nothing in the record showing that Officer Hubbartt prevented Newman from requesting an independent blood test or that Newman requested one. Moreover, there was no evidence as to Newman’s age, education, or intelligence. His detention was brief; approximately 17 minutes elapsed between Officer Hubbartt arriving on the scene and the reading of the implied consent notice. There was no evidence of any prolonged questioning, intimidation, fear, or threat of physical punishment. When Officer Hubbartt read the implied consent notice to Newman, Newman consented, withdrew that consent, and consented again. Thus, based on the totality of the circumstances, the trial court did not err in finding Newman voluntarily consented to the blood test.

The Court also rejected Newman’s claim “that he successfully withdrew any consent to have his blood tested when he sent the GBI a letter on December analyzed.”

In State v. Simmons, a 2004 DUI case with facts similar to those in Newman’s, the defendant consented to a state-administered blood test. Eleven days later–and before the GBI had tested the defendant’s blood sample– “the defendant wrote to the [GBI] crime lab to withdraw his consent to the blood test.” Although the trial court granted Simmons’ motion to suppress, the Court of Appeals reversed the decision, “concluding that the trial court’s reasoning that a defendant is ‘entitled to withdraw his duly given consent to State-administered testing on the theory that chemical analysis of his blood sample had not yet begun, is … contrary to our implied consent law.’”

The Court of Appeals found “no meaningful distinction” between Simmons’ case and Newman’s. Therefore, the Court of Appeals determined that “the trial court did not err in finding Newman’s consent to the blood test was voluntary and that Newman could not withdraw that consent after submitting to a blood draw.”

4. Applicable Standard by which to Consider the Officer’s Qualifications to Testify Regarding the Horizontal Gaze Nystagmus Field Sobriety Test

The Court of Appeals agreed with Newman that the trial court erred in applying the Harper standard—rather than the Daubert standard—”to Newman’s OCGA § 24-7-702 challenge regarding an officer’s administration of the HGN test.” In 2022, Georgia law was amended “‘to extend to criminal cases the federal standard of admissibility of expert testimony articulated in Daubert and its progeny.’”
Georgia law regarding expert testimony states, in part:

A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise, if:
(1) The expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue;
(2) The testimony is based upon sufficient facts or data;
(3) The testimony is the product of reliable principles and methods; and
(4) The expert has reliably applied the principles and methods to the facts of the case.
(OCGA § 24-7-702(b))

The trial court’s order denying Newman’s motion to suppress did not consider ‘‘[Officer Hubbartt’s] qualifications to testify as to the HGN test as well as the relevance and reliability of the proffered testimony based on the Daubert standard.” Therefore, the Court of Appeals “vacate[d] this portion of the trial court’s order and ‘remand[ed] the case for the trial court to exercise its discretion to determine under the correct standard, as set forth in OCGA § 24-7-702, whether the HGN testimony was properly admitted.’”
Newman v. State, No. A25A0603, 2025 WL 1464580 (Ga. Ct. App., May 22, 2025).

TRIAL COURT ERRED BY SUPPRESSING DUI BLOOD TEST RESULTS OBTAINED VIA SEARCH WARRANT

Hernandez was pulled over by police for speeding and failure to maintain her lane. After officers realized that Hernandez didn’t speak English and no interpreter was available to translate, “an officer attempted to communicate with Hernandez by using a translation application on his personal cell phone.” The officer suspected that Hernandez was under the influence, noting the “odor of alcohol on her breath and [her] watery, bloodshot eyes.” The officer used the translation app to convey the instructions for Hernandez to perform field sobriety tests and to take a portable breath test.
Based on his investigation, the officer arrested Hernandez for DUI, after which he “read the Georgia implied consent notice to Hernandez in English without using the translator.” (Emphasis added.) After transporting Hernandez to a police precinct, the arresting officer swore out a search warrant for Hernandez’s blood. The warrant was issued and a blood sample was obtained from Hernandez.

Hernandez was charged with DUI (alcohol), speeding, failure to maintain lane, and driving without a valid license. She filed a motion to suppress evidence including the results of her blood alcohol test, the officer’s bodycam footage, and her pre-custodial statements. The trial court granted Hernandez’s motion to suppress the results of her portable breath test, her blood test results, and the results “of a field sobriety exercise[.]” However, the trial court denied Hernandez’s request to suppress “officer body camera footage and Hernandez’s pre-custodial statements.”

The trial court cited the Georgia Court of Appeals’ 2022 decision in State v. Ortiz “to support its finding that Hernandez did not voluntarily withhold consent to submit to the test because she did not understand the implied consent notice read in English.” The state’s appeal from the trial court’s decision was limited to the trial court’s grant of Hernandez’s motion to suppress her blood test results.

The state argued that the trial court’s reliance on the Ortiz case was in error. The Court of Appeals agreed that the facts in Hernandez’s case were “materially different from Ortiz because . . . the officer did not administer the blood test to Hernandez based on her purported consent. Instead, due to the lack of consent, the officer applied for and obtained a search warrant to seize Hernandez’s blood for testing.” (Emphasis added.)

Additionally, the state contended that, since the search warrant “was valid and lawfully executed,” the results of Hernandez’s blood test should not be suppressed. The Court of Appeals did not address this argument on appeal, “since Hernandez did not challenge the search warrant in her motion to suppress.”
The Court of Appeals reversed the trial court’s ruling on Hernandez’s motion to suppress the blood test results. State v. Hernandez, No. A25A0558, 2025 WL 1702096 (Ga. Ct. App., June 18, 2025).