In Buford v. State of Georgia, --- S.E.2d ----, 2011 WL 5248199 (Ga.App.), Buford lost control of the car he was driving in Cherokee County. The car flipped over and hit a tree. Emergency personnel transported Buford by helicopter to Grady Memorial Hospital and advised the trooper at the scene that Buford smelled of alcohol. The trooper, who assumed from the helicopter transport that Buford's condition was “pretty serious,” drove to Grady, where hospital personnel told him that Buford was conscious.
When the trooper entered the room on the early morning of June 19, Buford was “taped to the spine board,” had “tubes coming from every which direction,” and “had a [stabilizing] collar on.” His eyes were closed, and he was silent. The trooper, who could smell alcohol on Buford's breath and in the room, told Buford who he was and attempted to get Buford to respond, but concluded from Buford's silence that he was under the influence of alcohol. The trooper also learned that Buford was taking narcotics for back pain. The trooper then told Buford that he was “going to charge him with DUI” and read him the implied consent notice. Although Buford opened his eyes at one point during these proceedings, he remained silent throughout and appeared to the trooper to be going in and out of consciousness.
The charges, however, were not officially place until months later.
Because Georgia requires an arrest that precedes the implied consent warnings, even for admissibility of the result for the criminal trial, the defendant claimed that he was not arrested prior to the blood draw, and he sought suppression. Disagreeing the appellate court wrote:
"It is undisputed that at the time of his encounter with the trooper, Buford was secured to a board in a hospital room with tubes attached to his body. Even assuming that Buford was alert rather than coming in and out of consciousness at the time, a reasonable person in his situation could not have thought that he was free to leave when the trooper announced that he was charging him with DUI. “ ‘[A] defendant may voluntarily submit to being considered under arrest without any actual touching or show of force.’ “ Hough v. State, 279 Ga. 711, 716, 620 S.E.2d 380 (2005), quoting Clement v. State, 226 Ga. 66, 67(2), 172 S.E.2d 600 (1970). It follows that this trial court did not clearly err when it found that Buford was under arrest when the trooper announced that he was being charged with DUI. Lucas, 265 Ga.App. at 244, 593 S.E.2d 707 (affirming suppression of defendant's statement on the basis of trial court's factual finding that defendant's “freedom was significantly curtailed” at the time the statement was obtained); compare Hough, 279 Ga. at 717, 620 S.E.2d 380 (reversing trial court's finding that defendant was under arrest where there was “no indication of an arrest at [the time the implied consent notice was given,] whether by citation or otherwise”). 2. In light of the above, we need not determine whether Buford's injuries were serious enough to justify the administration of a blood test without the reading of the implied consent notice for the purpose of preserving evidence. See Hough, 279 Ga. at 713(1), 620 S.E.2d 380; Gilliam v. State, 295 Ga.App. 358, 671 S.E.2d 859 (2008)."
The trial court's denial of the motion to suppress was affirmed.