THIRD DIVISION
DILLARD, P. J.,
GOBEIL and PIPKIN, 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.
https://www.gaappeals.gov/rules
July 2, 2026
In the Court of Appeals of Georgia
A26A0355. MCDAVID v. THE STATE.
GOBEIL, Judge.
A Fulton County judge found John McDavid guilty of DUI per se, DUI less
safe, and failure to maintain lane/improper lane change after he was arrested following
a single car accident on July 21, 2023. He now appeals directly from his judgment of
conviction, arguing that the trial court erred in (1) denying his motion to suppress the
evidence obtained from his traffic stop and detention; and (2) denying his motion in
limine to suppress the results of the State administered Intoxilyzer test. McDavid also
contends, and the State concedes, that his sentence on the final disposition was
improper due to a scrivener’s error. For the reasons explained below, we reverse the
denial of McDavid’s motion to suppress and reverse his convictions.
The primary issues in this case require us to review the trial court’s denial of
McDavid’s motion to suppress evidence. “Following the grant or denial of a motion
to suppress, we construe the evidence in the light most favorable to uphold the
findings and judgment of the trial court.” Grimes v. State, 303 Ga. App. 808, 808(1)
(695 SE2d 294) (2010). “[T]he trial court’s findings on disputed facts will be upheld
unless clearly erroneous, and its application of the law to undisputed facts is subject
to de novo review.” Green v. State, 331 Ga. App. 801, 801 (771 SE2d 518) (2015).
“[W]here controlling facts are not in dispute, such as those facts discernible from a
videotape, our review is de novo.” Ellis v. State, 312 Ga. 243, 247(1) (862 SE2d 279)
(2021).
The record here shows that McDavid was charged with DUI per se, DUI less
safe, and failure to maintain lane/improper lane change based on an incident that took
place on July 21, 2023. McDavid filed a motion to suppress alleging that he was
unlawfully “stopped and detained by officers of the Alpharetta Police Department.”
Specifically, he alleged that the “original two officers on scene refused to allow
[McDavid] to leave on foot or call a ride. [McDavid] was told he was required to
remain on scene, and he must get back in his vehicle.” In a separate motion, he also
2
sought to suppress the results of a blood alcohol breath test because, among other
things, the machine with which it was performed, the Intoxilyzer 9000, was not “in
good working order,” with all parts attached, as required under state law. These issues
were among many raised within several motions filed by McDavid.
The trial court conducted a hearing on McDavid’s motions on February 4,
2025. The State asked McDavid “to announce which portions of his motions he’s
going forward with,” and McDavid included, as relevant here, articulable suspicion
for the stop and detention, probable cause for the arrest, expeditious and diligent
investigation by the officers, and the working order of the alcohol breath test machine.
On the stop and detention issue, the only witness called by the State was
Sergeant Dustin Bak, an Alpharetta police officer. On the night of July 21, 2023, he
was assigned to the DUI enforcement unit, and he responded to a crash at
approximately 11:30 p.m. He was not the first officer on the scene; two other officers
were already present. Bak testified that one of the officers was “talking to [the driver]
and [Bak] walked up and ... basically took over ... the investigation” because of his
position on the DUI taskforce.
3
Bak observed the vehicle, which had struck a median and was “stuck in” place.
There was damage to the car, and it later had to be removed from the median by a tow
truck because it was not drivable. The driver, McDavid, was sitting alone in the
vehicle with the door closed and the window “about half way down.” Bak testified
that, upon interacting with the driver, he immediately smelled alcohol and suspected
intoxication. The driver was confused, had slurred speech, and struggled to explain
what had happened. When asked to produce his driver’s license, McDavid was slow
to retrieve it and tried to hand Bak the entire wallet. When McDavid exited the
vehicle, he fell forward and Bak had to catch him. McDavid admitted to having “a
couple of drinks” at a restaurant in the hours before.
Bak conducted road side evaluations of McDavid’s intoxication and determined
that he was unsafe to drive. Bak then administered his road side breath test, which
confirmed the presence of alcohol. Bak placed McDavid under arrest, and took him
to the jail, where he administered another breath test on the Intoxilyzer 9000 machine.
The results of this test showed McDavid’s blood alcohol level to be well above the
4
legal limit for operating a vehicle. The video footage from Bak’s body camera was
admitted into evidence and shown to the trial court.1
Regarding the condition of the Intoxilyzer machine, McDavid alleged that there
was a GBI bulletin stating “that the machine was not working properly and . . . was not
in good working order.”2 McDavid entered this bulletin into the record, but noted
1
The video generally confirms Bak’s description of events. Notably, the video shows two officers standing at McDavid’s driver’s side door, one of whom was speaking to McDavid as Bak approached the vehicle. As Bak gets closer, the officer speaking to McDavid introduces Bak and states that Bak will be the person talking to him, and Bak engages directly with McDavid from that point on.
2
Specifically, this bulletin, dated August 23, 2023, states:
It has been discovered that breath test reports reprinted from Georgia
Model Intoxilyzer 9000 instruments in some instances may contain a
single breath sample profile that is inconsistent with the breath profiles
contained on the original breath test report. This inconsistency can occur
if the instrument attempts to duplicate an existing file name during the
storage of the breath profile image; however, all other information on
reprinted reports, including the measured BrAC result, has been found
to be consistent with the original breath test. Additionally, all elements
of original breath test reports printed at the time of testing accurately
reflect the breath test information.
Considering this, we recommend that any reprinted breath test report
5
that, as exculpatory evidence, it was the State’s responsibility to provide it in
discovery, but it had not done so. McDavid expressed frustration that the State was
surprised at this issue being raised because it should have been on notice given the
GBI bulletin and his motions. The trial court indicated that it would hold another
hearing on the issue so that the State could schedule any further witnesses it may
require. However, the trial court ruled on this issue after hearing from the only State
witness, Sergeant Bak.
Bak testified that he was trained in operating the Intoxilyzer 9000 and had used
the machine approximately 15 times in the past. Bak testified that the machine was
functioning properly and in good working order with all its component pieces on the
night of McDavid’s arrest. He explained that the machine is inspected and calibrated
by the Georgia State Patrol quarterly, and the machine’s certifications were entered
into evidence. When asked about the GBI bulletin described above, Bak stated that the
bearing software version 9406.05.00 be verified against an original
printing prior to use. An original test can be identified by ensuring that
the date and time in the “Printed On” field at the bottom of the report
is consistent with the date listed in the top right corner of the report and
the time given for the last “Air Blank”. Note that these times may vary
by as much as a few minutes.
6
software issue described in the bulletin (which came out after McDavid’s tests were
conducted) did not produce the error described in the bulletin during McDavid’s
tests.
The court issued its order denying McDavid’s motions. The court found that
there “was no traffic stop of a moving vehicle,” rather, this “was a single car accident
investigation,” and Sergeant Bak had reasonable suspicion to conduct a DUI
investigation after he observed signs of intoxication from McDavid. The court noted
that the “initial encounter was a first tier encounter and thus required no suspicion
of criminal activity,” and “although there was no direct testimony regarding how long
the other officers had been on scene, there appeared to have been no investigation
done by the time Sgt. Bok (sic) arrived. He responded directly to an accident call at
approximately 11:30 p.m.” The court noted that the vehicle was not drivable, and
McDavid was still seated in his vehicle and had not yet removed his driver’s license
to give to any other officer. The court then found that the investigation was not
unreasonably prolonged, and Bak had probable cause for the arrest.
As for the Intoxilyzer results, the court found that “the State did not have a
witness present to testify regarding this issue because the defense had not
7
particularized its motion to advise the State of the nature of the challenge to the breath
test.” Relying on the exhibits presented at the hearing and Bak’s testimony, the court
found that further witnesses were not necessary because the “bulletin does not apply
to the test results in this case; the evidence presented was a verified copy of the
original test result, not a machine originated reprint and the test result showed two
breath profiles.”
The case then proceeded to a stipulated bench trial, where the parties agreed
for the court to make its verdict based on the evidence presented at the motion to
suppress hearing. The court found McDavid guilty as charged. The court indicated
that the DUI per se charge would merge into the DUI less safe charge, so he was to
be sentenced on Counts 2 and 3. The court sentenced him to 12 months, with one day
to serve in custody. On McDavid’s final disposition sheet, however, there is a
scrivener’s error which indicates that he was sentenced for Counts 1 and 2, rather
than Counts 2 and 3. This appeal followed.
1. On appeal, McDavid argues that the State failed to carry its burden to show
the lawfulness of his initial stop and detention. By failing to have either of the first two
responding officers testify at the motion to suppress hearing, McDavid contends that
8
the State “did not establish the reason for the initial police-citizen encounter.”
Further, McDavid argues that the State “failed to prove how long the initial officers
were at the scene detaining [McDavid] pending Bak’s arrival or what they did while
waiting for Bak,” noting that Bak never provided any specific information about what
time he was dispatched and what time he arrived on scene. McDavid contests the trial
court’s finding that the initial encounter with McDavid and the original two officers
was a first-tier encounter requiring no reasonable suspicion because “the court cites
to no testimony to support” this finding. We agree that the State failed to carry its
burden in this case.
“The Fourth Amendment imposes limits on search-and-seizure powers in
order to prevent arbitrary and oppressive interference by enforcement officials with
the privacy and personal security of individuals.” Brown v. State, 293 Ga. 787,
791(2)(a) (750 SE2d 148) (2013). It is well established that there are three types of
encounters between law enforcement and citizens for purposes of a Fourth
Amendment analysis: “encounters involving no coercion or detention, which are
outside the purview of the Fourth Amendment altogether; brief seizures, which
require an officer to have a reasonable suspicion of criminal wrongdoing; and custodial
9
arrests, which require probable cause.” State v. Perry, 349 Ga. App. 475, 476 (825
SE2d 902) (2019).
A first-tier encounter is a consensual interaction, during which “police officers
may approach citizens, ask for identification, and freely question the citizen without
any basis or belief that the citizen is involved in criminal activity, as long as the officers
do not detain the citizen or create the impression that the citizen may not leave.”
Minor v. State, 314 Ga. App. 253, 255(1) (723 SE2d 702) (2012). If the trial court in
this case were correct, and the encounter between McDavid and the original two
responding officers was a first-tier encounter, the fact that the original officers did not
testify would be immaterial, because a first-tier encounter requires no specific
justification and “provides no Fourth Amendment protection.” McClary v. State, 292
Ga. App. 184, 186 (663 SE2d 809) (2008).
However, we have held repeatedly “that a citizen’s ability to walk away from
or otherwise avoid a police officer is the touchstone of a first-tier encounter.” Johnson
v. State, 343 Ga. App. 310, 312 (807 SE2d 101) (2017). See also State v. Walker, 350
Ga. App. 168, 174–75 (828 SE2d 402) (2019) (encounter escalates to second-tier when
“by means of physical force or a show of authority, a reasonable person would have
10
believed that he was not free to leave” (punctuation omitted)). And McDavid alleged
in his motion to suppress specifically that the “initial officer to stop and detain [him]
did not have a reasonable articulable suspicion to stop nor continue to detain [him],”
and the “original two officers on scene refused to allow [him] to leave,” told him to
remain on scene, and told him to stay in his vehicle.3 There is no question that, if
McDavid’s allegations are true, and either of the responding officers ordered
McDavid to remain in the vehicle, or instructed him that he could not leave the scene,
then McDavid was being detained for purposes of the Fourth Amendment.4 See In the
3
Although we have no testimony from the motion to suppress hearing
concerning what the original officers said to McDavid, Sergeant Bak testified, and his body cam video shows, that at least one of these officers was speaking to McDavid at his driver’s window before Bak arrived.
4
We take this opportunity to distinguish Stadnisky v. State, 285 Ga. App. 33, 36–38(2) (645 SE2d 545) (2007), in which we affirmed the DUI conviction of a defendant. In Stadnisky, a witness testified at the defendant’s bench trial that the defendant swerved in front of her vehicle and crashed into her. 285 Ga. App. at 34(1). The two cars pulled over to a nearby gas station; the defendant’s car was undrivable due to damage sustained after hitting a curb while trying to park the vehicle there. Id. The witness testified that she spoke to the defendant, who was “agitated and slurred his words a little,” and refused to turn over his insurance information. Id. She called police, and an unidentified officer responded to the scene within 5 minutes and told them to wait for another officer, essentially detaining them until the second officer arrived approximately 20 minutes later and ultimately arrested the defendant based on signs of intoxication to which the second officer testified. Id. When the “phantom” first officer was never identified by the State, the defendant moved in limine to
11
suppress all testimony from the second officer, as any evidence he gathered came as a result of the unsupported detention from the first officer who did not testify. Id. at 36(2).
We ultimately affirmed the trial court’s denial of this motion limine for three reasons, none of which are compelling in McDavid’s case. First, the only evidence of this “phantom officer” was the witness’s testimony, which the trial court was authorized to discredit. Id. at 37(2). Second, “there were abundant objective circumstances that would have been obvious to the ‘phantom’ first officer that would have authorized a seizure.” Id. Third, regardless of whether the defendant was “seized” within the meaning of the Fourth Amendment, he had an independent duty to remain on the scene pursuant to OCGA § 40-6-270(a), the hit and run statute. Id. at 38(2). Thus, he was not free to leave under the law for a reason independent of the phantom officer’s demands. Id. Based on these reasons, the trial court’s admission of the subsequent officer’s evidence was affirmed. Id.
Here, however, on the first issue, there was no witness testimony concerning what the original responding officers said to McDavid, so the trial court was not authorized to simply disbelieve the allegations in McDavid’s motion to suppress, as it is the State’s burden to produce evidence supporting the detention. See State v. King, 287 Ga. App. 680, 682 (652 SE2d 574) (2007) (“Once a defendant files a motion to suppress alleging an illegal search and seizure, the state bears the burden of proving that the search is lawful.”).
On the second issue, we find distinguishable the amount of evidence presented to the trial court to support the finding of “abundant objective circumstances” to justify the original officers’ detention of McDavid, as the only evidence here came from Officer Bak, who was not present during the crucial moment of the original detention. In Stadnisky, where the State presented a witness to testify to the circumstances of the defendant’s two incidents of reckless driving, the defendant’s demeanor (including signs of intoxication) immediately following the car accident, the presence of the non-testifying officer and his interaction with the defendant, and the timeline of events. Here, in contrast, we have only Bak’s testimony and body cam footage, and he was unable to testify as to the amount of time that passed between when the accident occurred, when the original officers arrived and detained McDavid, and when Bak arrived on the scene. Accordingly, unlike in Stadnisky, although here
12
Interest of C. B., 353 Ga. App. 383, 384 (837 SE2d 544) (2020) (officer telling
defendant to stay in front of his police car while awaiting another officer escalated a
first-tier encounter to a second-tier encounter).
On a motion to suppress, the State bears the burden to prove the lawfulness of
the detention. OCGA § 17-5-30(b). And in order to justify a second-tier encounter,
even a brief one, the State is “required to prove that the officer then was aware of
specific and articulable facts which, taken together with rational inferences from those
facts, reasonably warrant the detention.” State v. Assing, 361 Ga. App. 868, 869 (864
SE2d 131) (2021). Indeed, “the moment [McDavid] was prevented from leaving [the
officers’] presence, his encounter with the police amounted to a detention which, in
we have evidence of certain objective circumstances as they existed at the time Bak observed McDavid, we are forced to only assume the presence of these circumstances at the time McDavid was detained. Given these facts and without any indication of the timeline between these points in time, we find it to be too speculative to support a reasonable inference here as our Court did in Stadnisky.
Finally, McDavid’s accident did not involve another vehicle or injured person, which would have required him to remain on scene. OCGA § 40-6-270. Indeed, “where is no personal injury or in which no second party and no property of a second party is involved,” a motorist does not have to immediately stop and report an accident. OCGA § 40-6-274. Accordingly, we find Stadnisky distinguishable from the instant case.
13
order to be lawful, must be supported by reasonable suspicion.” State v. Mrozowski,
371 Ga. App. 501, 504 (901 SE2d 327) (2024).
Here, the State simply failed to meet its burden to disprove the allegations in
McDavid’s motion. Given the allegations, the State needed the testimony of at least
one of the initially responding officers to either rebut McDavid’s allegation that they
prevented him from leaving the scene (making it a first-tier encounter with no further
justification necessary), or provide the court with testimony from which the court
could determine if the officer had reasonable suspicion for the detention. See Assing,
361 Ga. App. at 869 (“Absent testimony regarding the specific and particularized facts
justifying the officer’s detention of [the defendant], the State could not meet its
burden of proving that [the defendant’s] detention was lawful.”). It is true that
Sergeant Bak, who later responded to the scene, provided significant testimony for the
basis of his investigation and arrest of McDavid and that such reasonable suspicion
may have existed at the time of the initial detention. However, his testimony of later
occurring events does not help the State meet its burden of proving that the initial
detention was sufficiently justified. Compare Kazeem v. State, 241 Ga. App. 175,
177–78 (525 SE2d 437) (1999) (reversing the denial of a motion to suppress where the
14
first officers on scene did not testify; first officers had already restricted the
defendant’s movement and began to question him; “because it is unclear what facts
the officers who initiated the stop had before they made the stop, the evidence should
have been suppressed”), with Adcock v. State, 299 Ga. App. 1, 2 (681 SE2d 691)
(2009) (affirming the denial of motion to suppress where the first officers on scene did
not testify; although the testifying officer was not the first on scene, “it is undisputed
that he was the first officer to approach [the defendant] and his car and the first to
interact with [the defendant] in any way”). Accordingly, the trial court erred in
denying McDavid’s motion to suppress. And given that the only evidence presented
by the State in this case came after his unjustified detention, his convictions must be
reversed. See State v. Alford, 347 Ga. App. 208, 214(3) (818 SE2d 668) (2018) (absent
an applicable exception, where there is no legal justification for an arrest, its unlawful
fruits may not be introduced as evidence).
2. Because of our holding in Division 1, we need not address McDavid’s
arguments concerning the admissibility of the results of the Intoxilyzer test or the
error on his final disposition sheet.
Judgment reversed. Dillard, P. J., concurs in judgment only and Pipkin, J., dissents.
15
A26A0355. McDAVID v. THE STATE.
PIPKIN, Judge, dissenting.
Just like the law does not require a fact-finder to get wet to conclude that it has
been raining, the trial court, in this case, was not required to hear from multiple
witnesses to conclude that McDavid was obviously drunk when he first encountered
law enforcement after driving his SUV off the road late on a Friday night in July 2023.
Unfortunately, in analyzing the trial court’s ruling denying McDavid’s motion to
suppress, the majority opinion has applied an incomplete standard of review and
strayed from construing the evidence most favorably to upholding the trial court’s
factual findings and judgment. As a result, I cannot join the majority opinion and must
respectfully dissent.
The majority opinion assumes that this case involves a traffic stop, but it does
not. Instead, the 64-year-old defendant immobilized his SUV by driving it off the road
and onto a recently landscaped median, taking out a road sign and a small tree in the
process. The State presented uncontradicted evidence at the suppression hearing that
the original two officers on the scene, Lieutenant Heart and Officer Rupert of the
Alpharetta Police Department, were there to conduct an accident investigation. Sgt.
Dustin Bak, who was assigned to the department’s DUI enforcement unit, also was
dispatched to the scene as part of the accident investigation, and he later filed an
accident report. However, once Bak arrived and began speaking with McDavid, the
accident investigation evolved into a DUI investigation, and Bak ultimately arrested
McDavid for DUI.
The primary issue in this case is whether Heart and Rupert violated McDavid’s
Fourth Amendment rights by allegedly ordering him to remain there until Bak arrived.
On appeal from an order denying a motion to suppress, we must uphold the trial
court’s factual findings if there is any evidence to support them. See Winslow v. State,
315 Ga. 133, 136-37(2) (880 SE2d 530) (2022); Brown v. State, 293 Ga. 787,
803(3)(b)(2) (750 SE2d 148) (2013). In addition, we must construe the evidentiary
record in the light most favorable to the trial court’s factual findings and judgment.
2
See Winslow, 315 Ga. at 137(2); State v. Allen, 298 Ga. 1, 2(1)(a) (779 SE2d 248)
(2015). Critically, determining whether the “historical facts, viewed from the
standpoint of an objectively reasonable police officer, amount to reasonable suspicion
or to probable cause ... is a mixed question of law and fact” that this Court reviews de
novo. Ornelas v. United States, 517 U.S. 690, 696 (116 SCt 1657, 134 LE2d 911) (1996).
See also id. at 699 (“[A]s a general matter determinations of reasonable suspicion and
probable cause should be reviewed de novo on appeal.”); Hughes v. State, 296 Ga. 744,
750 (2) (770 SE2d 636) (2015) (“[W]e 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.”). Likewise, determining whether a detention was unreasonably
prolonged may be a fact-intensive inquiry, “but it is ultimately a holding of
constitutional law that we review de novo.” Allen, 298 Ga. at 4(2).
Prior to trial, McDavid filed a motion to suppress pursuant to OCGA § 17-5-30(a)(1). In his motion, McDavid asserted as fact that “[t]he original two officers on
scene” told him six things: (1) he was “going to be arrested”; (2) he had to “wait for
other officers”; (3) he could not “leave on foot”; (4) he could not “call a ride”; (5) he
had to “remain on scene”; and (6) he had to “get back in his vehicle.” Assuming
3
these facts are true,1 before Bak arrived at the scene, Heart and Rupert had a
conversation with McDavid and saw him outside his SUV. See Maj. Op. at 5 n.1
(noting that the footage from Bak’s body camera, which was admitted into evidence
and played for the trial court at the suppression hearing, shows that “at least one of
these officers [i.e., Heart or Rupert] was speaking to McDavid at his driver’s window
before Bak arrived”). And we know from Bak’s testimony at the suppression hearing
and the footage from his bodycam what “objective facts, ... obvious to anyone at the
scene,” Heart and Rupert would have learned merely from conversing with McDavid
and observing him outside his SUV. Stadnisky v. State, 285 Ga. App. 33, 37(2) (645
SE2d 545) (2007).
Bak testified that when he approached McDavid’s SUV, he could smell “[t]he
immediate odor of alcohol[ic] beverage coming from [McDavid’s] breath when he
spoke ... .” Bak also testified, and his bodycam footage shows, that McDavid was
heavily slurring his speech and could not explain “how he ended up in the median.”
Bak testified that McDavid was “very unsteady on his feet,” and his bodycam footage
1
As the majority opinion acknowledges, McDavid presented no evidence at the suppression hearing that Heart or Rupert said any of these things to him. See Maj. Op. at 11 n.3.
4
shows that McDavid swayed when standing and had trouble remaining upright.
Indeed, the bodycam footage shows that McDavid was falling-down drunk; when he
got out of his SUV, he staggered for a few steps and then fell into Bak, who had to
catch him to keep him from falling to the ground. Thus, contrary to the majority
opinion’s claim, see Maj. Op. at 13 n.4, at the suppression hearing, the State presented
evidence of “abundant objective circumstances that would have been obvious to
[Heart and Rupert] that would have authorized a seizure” of McDavid. Stadnisky, 285
Ga. App. at 37(2). See also id. (referring to “objective facts, ... obvious to anyone at
the scene, [that] would have given rise to a reasonable suspicion of criminal activity”).
When properly viewed, Bak’s testimony at the suppression hearing, together
with the footage from his bodycam, showed clearly that Heart and Rupert did not
violate McDavid’s Fourth Amendment rights. The validity of McDavid’s alleged
detention prior to Bak’s arrival did not turn on the subjective beliefs or motivations
of Heart or Rupert. See id. See also Whren v. United States, 517 U.S. 806, 814(II)(B)
(116 SCt 1769, 135 LE2d 89) (1996) (“[T]he Fourth Amendment’s concern with
‘reasonableness’ allows certain actions to be taken in certain circumstances, whatever
the subjective intent.”). Cf. Maj. Op. at 9 (recounting McDavid’s argument that “[b]y
failing to have either of the first two responding officers testify at the motion to
5
suppress hearing, ... the State ‘did not establish the reason for the initial police-citizen
encounter’”). Consequently, there was no need for testimony from Heart or Rupert
at the suppression hearing.
The majority opinion concedes that Bak’s testimony and bodycam footage
constituted “evidence of certain objective circumstances as they existed at the time
Bak observed McDavid” and that this evidence established that “reasonable suspicion
may have existed at the time of [McDavid’s] initial detention.” Maj. Op. at 13 n.4, 15
(emphasis added). However, the majority opinion then dismisses this evidence on the
theory that “testimony [about] later occurring events does not help the State meet its
burden of proving that the initial detention was sufficiently justified.” Maj. Op. at 15.
As the majority sees it, because Bak was “unable to testify as to the amount of time
that passed between when the accident occurred, when the original officers arrived
and detained McDavid, and when Bak arrived on the scene,” “we are forced to only
assume the presence of these circumstances at the time McDavid was detained,” and
that is “too speculative” a basis on which to affirm the trial court’s denial of
McDavid’s motion to suppress. Maj. Op. at 13 n.4. The unstated assumption behind
the majority’s argument seems to be that McDavid may have gotten drunk after he
drove his SUV off the road and onto the median and after Heart and Rupert arrived
6
and spoke with him as part of their accident investigation but before Bak arrived at the
scene as part of the same accident investigation and began interacting with McDavid.
However, no evidence was presented at the suppression hearing to support such an
implausible chain of events. More importantly, the evidentiary record, construed
“most favorably to the upholding of the trial court’s findings and judgment,”
forecloses such a scenario. Miller v. State, 288 Ga. 286, 287(1) (702 SE2d 888) (2010)
(citation modified).
Because the trial court properly denied McDavid’s motion to suppress, I would
affirm his convictions. Accordingly, I respectfully dissent.
7