Howard v. Cofer, 57751
| Decision Date | 25 September 1979 |
| Docket Number | No. 57751,57751 |
| Citation | 258 S.E.2d 195,150 Ga.App. 579 |
| Parties | HOWARD v. COFER et al. |
| Court | Georgia Court of Appeals |
Ben Lancaster, Cartersville, for appellant.
Arthur K. Bolton, Atty. Gen., William B. Hill, Asst. Atty. Gen., for appellees.
Appellant's driver's license was suspended on the basis of appellant's refusal to submit to a test to determine the alcoholic or drug content of his blood as required by Georgia's "implied consent" law. The superior court upheld the order of suspension issued by the Department of Public Safety. Appellant appeals from the judgment of the superior court.
1. Code Ann. § 68B-306 provides for the suspension of the driver's license of one who, under certain circumstances, refuses to submit to a chemical test "of his blood, breath, or urine or other bodily substances" upon the request of a law enforcement officer. It further provides that "the requesting law enforcement officer shall designate which of the aforesaid tests shall be administered."
Appellant argues that the law enforcement officer here did not make the required designation and that the test was, therefore, invalid. The record, however, shows that the officer in fact did designate that appellant's breath would be tested by use of the intoximeter. There is no merit in this enumeration.
2. The record demonstrates that the officer gave appellant the following Implied Consent Warning:
Appellant attacks the sufficiency of this warning to give him proper notice of his rights and obligations under the law. Appellant's arguments at best raise overly technical objections to the warning given. Suffice it to say that the thrust of those arguments is that appellant should have received a warning which tracked the Exact language of Code Ann. § 68A-902.1. We know of no authority requiring a verbatim recitation of the statutory provisions. "The arresting officer at the time of arrest shall advise the person arrested of his rights to a chemical test or tests according to this section." Code Ann. § 68A-902.1(a)(4). Appellant was fully advised of his obligation to submit to a test and the consequences of refusal to do so and of his right to have an independent test of the various bodily substances made by personnel of his own choosing. This was sufficient. Compare Nelson v. State, 135 Ga.App. 212, 217 S.E.2d 450 (1975); Garrett v. Dept. of Public Safety, 237 Ga. 413(2), 228 S.E.2d 812 (1976).
We do not agree with the contention that the warning was invalid because it failed to advise appellant of his right to an additional test by " qualified" persons of his own choosing. See Code Ann. § 68A-902.1(a)(3). "(T)he legislature intended that this right (to an independent test) be made known to the defendant at the time of his arrest in order that he may, if he chooses, challenge the accuracy of the chemical test administered by the state at the only time such a challenge would be meaningful." Nelson v. State, supra at 214, 217 S.E.2d at 452. While it would be more desirable for officers to advise persons under arrest in the exact language of Code Ann. § 68A-902.1(a) (3), we refuse to hold that the failure to advise appellant of his right to have "qualified" personnel conduct the additional test can be construed as preventing him from making "an intelligent choice to submit to a chemical test . . ." Garrett v. Dept. of Public Safety, supra at 415, 228 S.E.2d at 814. The warning which was given appellant was sufficient to provide him with the required...
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People v. Schuberth, 82-308
...consent is refusal); Brueck v. Melton (1977), 58 A.D.2d 1000, 397 N.Y.S.2d 271 (failure to blow air after consent); Howard v. Cofer (1979), 150 Ga.App. 579, 258 S.E.2d 195 (failed to inflate balloon after consent); Poag v. Powell (1979), 39 N.C.App. 363, 250 S.E.2d 93 (failed to give suffic......
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Com. v. Tillia
...527 P.2d 361, 117 Cal.Rptr. 9 (1974) (due process requires prosecutor to preserve and disclose breath sample); cf. Howard v. Coffer, 150 Ga.App. 579, 258 S.E.2d 195 (1979), citing, Ga.Code Ann. Sec. 68A-902.1(a)(3) (authorities must provide defendant with notice of right to independent test......
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Barnhart v. Kansas Dept. of Revenue, 60419
...of K.S.A.1985 Supp. 8-1001(f)(1)(E). Absent any showing of prejudice by appellant, the point lacks merit. Cf. Howard v. Cofer, 150 Ga.App. 579, 258 S.E.2d 195 (1979); Wimmer v. MVD, 75 Or.App. 287, 706 P.2d 182 Next, the appellant contends that the statutory procedure utilized to suspend hi......
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Allen v. State
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