DPS Legal Review

Georgia Court of Appeals

DEFENDANT’S CONSENT TO BREATH TEST WAS VOLUNTARY

Sometime in October 2017, a Forsyth County Sheriff’s Office deputy was patrolling a highway when he saw a vehicle driven by Losurdo “drift” into his lane. Next, the deputy observed Losurdo following too closely behind the car in front of him and failing to maintain his lane a number of times. The deputy then pulled over Losurdo’s car, which Losurdo “immediately pulled into the gore area at an exit.”

Losurdo complied with the deputy’s request that he exit his car and put out his cigarette. The deputy smelled “an odor of alcohol about Losurdo’s face[.]” When the deputy inquired as to how much alcohol Losurdo had drunk, Losurdo said that he had had “two margaritas” about an hour earlier. After the deputy told Losurdo that he wanted to assess whether Losurdo was safe to drive, Losurdo “‘was very polite and consensual … and allowed me to conduct the standardized field sobriety evaluation with him.’”

Losurdo exhibited six out of six clues on the horizontal gaze nystagmus test and four out of eight clues on the walk-and-turn test. When Losurdo took an Alco-sensor portable breath test, the result was positive. Based on these results, the deputy told Losurdo that he was being arrested for DUI. After handcuffing Losurdo “with his hands in front of his body,” the deputy read Losurdo the implied consent notice for suspects age 21 or over, and asked whether Losurdo would submit to a state administered breath test. Losurdo replied, “‘[Y]eah,
I guess — I don’t know what the best decision is here.’” Losurdo never asked the deputy to clarify anything pertaining to the breath test, either as he was driven to or after arrival at the jail. Losurdo blew a .096 on the Intoxilyzer 9000 test administered at the jail.

After being charged with DUI, DUI less safe and failure to maintain lane, Losurdo filed a motion to suppress the Intoxilyzer results. The trial court heard testimony from both Losurdo and the deputy at the suppression hearing and ruled “that Losurdo had voluntarily consented to the breath test.” Subsequently, Losurdo was convicted at trial on all counts.
After the trial court denied Losurdo’s motion for a new trial, he “moved the court to vacate and reconsider its order in light of a newly decided case, Elliott v. State, which held that a driver’s refusal to take the state-administered breath test cannot be admitted at trial, contradicting language in this case’s implied consent notice stating otherwise.” The trial court vacated its order, reviewed the Elliott decision, and – again – held “that Losurdo had consented to the breath test under the totality of the circumstances of his arrest, despite the misleading nature of the implied consent warning.” Losurdo then appealed to the Georgia Court of Appeals (“Court”).

On appeal, Losurdo argued “that the trial court erred by ruling that his consent pursuant to the implied consent notice was voluntary.” Losurdo emphasized

that the implied consent notice wrongly stated that the driver is ‘required’ to consent to a breath test, and that his refusal may be admitted against him at trial. Based on these errors, he argues that his roadside consent to the breath test — obtained after being read the misleading implied consent notice — was involuntary.

The Court rejected Losurdo’s arguments, citing a 2023 decision by the Georgia Court of Appeals (Luna-Galacia v. State) in which the Court held that “‘the inclusion of misleading information in the implied consent notice does not render the notice unconstitutionally coercive on its face.’” The Luna-Galacia Court explained that, in light of the Elliott decision, a court should consider the “totality of the circumstances” to assess the voluntariness of consent to a breath test. Among the factors to evaluate, the Luna-Galacia Court noted, are

the 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.

In Losurdo’s case, the Court concluded that, based on the totality of the circumstances, Losurdo’s consent was “constitutionally valid.” The Court reasoned:

[I]t is undisputed that the arresting deputy did not promise anything to Losurdo or threaten him. Based on the deputy’s vehicle dash cam video, the entire interaction between Losurdo and the deputy was cooperative and even cordial. Losurdo already had been informed that he was under arrest, so his decision to take the breath test was not conditioned on arrest. Further, Losurdo was coherent and capable of communicating without difficulty; he had one semester of college education; he was not subject to a lengthy detention prior to his consent; and although he had not been read his Miranda rights, the deputy handcuffed Losurdo in front of his body instead of behind the back to minimize his confinement due to his cooperative demeanor. Finally, the deputy allowed Losurdo time to think through his decision, explaining that he was not forcing a particular choice and just needed to know Losurdo’s answer.

For these reasons, the Court of Appeals affirmed the trial court’s ruling that Losurdo “voluntarily consented to the breath test despite being read a misleading implied consent notice.” Losurdo v. State, No. A24A1529, 2025 WL 414222 (Ga. Ct. App., Feb. 6, 2025).

VEHICLE SEARCH INCIDENT TO ARREST DID NOT VIOLATE THE FOURTH AMENDMENT

An Athens-Clark County police officer was dispatched to the scene of “‘a vehicle that struck a curb’ at a stop sign.” Upon arrival, the officer saw Morris standing outside of the vehicle, whose tire was “up against the curb.” As the officer spoke to Morris, he detected an odor of alcohol on her breath; he also observed “that she was swaying and had slurred, rambling speech.” Morris twice refused the officer’s request that she take some field sobriety tests. The officer told Morris “that she was under arrest for DUI but stated that he was not going to handcuff her or take her to jail.” (At a suppression hearing related to Morris’s arrest, the officer testified that, due to events that transpired in the summer of 2020, “the Athens-Clark County police had implemented a ‘soft approach’ to non-violent crimes ‘in order to maintain peace and an equitable society.’”)

After the officer told Morris that she was under arrest for DUI less safe (alcohol), he read her the applicable implied consent notice, and asked whether she would submit to a state administered chemical test of her blood. Morris refused to take the test. The officer found “a stainless steel cup containing a mixed drink that smelled of alcohol” when he searched Morris’s vehicle. Georgia law provides:

When a lawful arrest is effected a peace officer may reasonably search the person arrested and the area within the person’s immediate presence for the purpose of … [d]iscovering or seizing any … things which … may have been used in the commission of the crime for which the person has been arrested.

(O.C.G.A. § 17-5-1 (a) (4))

Based on his investigation, the officer issued Morris a DUI citation. Sometime thereafter, the officer allowed Morris to be driven home by her husband.

Morris filed a motion to suppress evidence of the stainless steel cup containing an alcoholic beverage. She contended that the officer’s search of her vehicle “was not a search incident to arrest because she was never arrested.” Morris’s motion was denied by the trial court. Subsequently, a jury convicted Morris on charges of DUI less safe, open container and failure to stop at a stop sign. The trial court denied Morris’s motion for a new trial, from which she appealed. On appeal, Morris argued “that the trial court erred by denying her motion to suppress because the search of her vehicle was not actually incident to arrest, in light of the fact that she was not handcuffed, taken to jail, or booked on the DUI count.” Morris cited Knowles v. Iowa, a 1998 decision of the United States Supreme Court, in support of her argument.

In Knowles, the U.S. Supreme Court held “that a warrantless vehicle search incident to issuing a speeding ticket violated the Fourth Amendment’s protection against unreasonable searches.” In contrast, the Iowa Supreme Court had interpreted the Iowa statute at issue as authorizing the police “to conduct a vehicle search based on a traffic offense even if the driver was not arrested and regardless of the need to seek evidence of the offense.” In its 1998 decision the U.S. Supreme Court held

that the general ‘bright-line rule’ authorizing searches incident to arrest did not extend to searches authorized by Iowa law based on the issuance of a citation. The Court explained in part that ‘[o]nce Knowles was stopped for speeding and issued a citation, all the evidence necessary to prosecute that offense had been obtained. No further evidence of excessive speed was going to be found either on the person of the offender or in the passenger compartment of the car.’

The Georgia Court of Appeals distinguished Morris’s case from that of the driver issued a speeding ticket in Iowa:

First, Morris was cited for DUI, and the officer was looking for evidence of that offense. DUI differs from other traffic offenses, such as speeding, because it can involve driving while drinking from a container present in the car at the time of the offense, as here. Therefore, based on the officer’s observations of Morris’s condition and the odor on her breath, it was reasonable for the officer to believe that the car contained evidence of her drinking.

Second, the Court of Appeals reasoned, “[D]espite her argument to the contrary, Morris was under arrest during the search.” The Court opined:

Here, although the officer did not place Morris in handcuffs, he unequivocally told her that he was placing her under arrest for DUI. A reasonable person in Morris’s position would believe that she was not free to leave, subject to further direction or confinement by the officer, and being charged with a crime. The officer explained at the hearing that he was implementing a ‘soft approach’ to police tactics, but as noted above, making an arrest does not always require a ‘hard approach’ involving handcuffs and the back of a police car. Under the unique circumstances of this case, we decline to hold that Morris was not under arrest simply because the officer did not engage in more forcible tactics. Because Morris was under arrest and her offense was connected to evidence that could be and was located in her car, Knowles does not require reversal.

Therefore, the Court of Appeals affirmed the trial court’s denial of Morris’s motion to suppress evidence found during the search of her vehicle.
Morris v. State, No. A24A1296, 2025 WL 413588 (Ga. Ct. App., February 6, 2025).