State v. Johnston

• Decision Date: 25 May 1982
• Docket Number: No. 38151,38151
• Citation: 249 Ga. 413,291 S.E.2d 543
• Parties: The STATE v. JOHNSTON.
• Court: Georgia Supreme Court

Page 543

291 S.E.2d 543

249 Ga. 413

The STATE v. JOHNSTON.

No. 38151.

Supreme Court of Georgia.

May 25, 1982.

Herbert A. Rivers, Sol., Charles S. Hunter, Asst. Sol., Marietta, for the State.

Hinson McAuliffe, Paul C. McCommon, III, Atlanta, for amicus.

Melvin Nash, Marietta, for David Wayne Johnston.

SMITH, Justice.

Johnston was arrested on DUI charges. He thereafter filed a written motion to suppress pursuant to Code Ann. § 27-313 alleging that: 1) The arresting officer did not advise Johnston of his right to have additional blood alcohol tests of his own choosing as required by Code Ann. § 68A-902.1(a)(4); 2) The breath test given to Johnston was not conducted by a qualified operator; 3) The device used had not been specifically approved by the Department of Public Safety as required by the rules of that department (Rule 570.9--.06(5)); and 4) The test was the result of an arrest for which there was no probable cause.

The motion came on to be heard. The State refused to offer any evidence, contending that a motion to suppress is not a proper vehicle to contest the admissibility of breath test results. The trial court granted the motion to suppress. The Court of Appeals affirmed. State v. Johnston, 160 Ga.App. 71, 286 S.E.2d 47 (1981). We granted the State's application for certiorari and affirm, but not for the reasons enunciated by the Court of Appeals.

1) Code Ann. § 27-313 sets forth two grounds for the suppression of evidence obtained as a result of an unlawful search and seizure: "(1) The search and seizure without a warrant was illegal; or (2) The search and seizure with a warrant was illegal because the warrant is insufficient on its face; there was not probable cause for the issuance of the warrant; or, the warrant was illegally executed." "By its clear terms, [Code Ann. § 27-313] furnishes a procedural device for the protection of constitutional guarantees against unreasonable search and seizure only." Hawkins v. State, 117 Ga.App. 70, 159 S.E.2d 440 (1967). Moreover, since § 27-313 speaks of "the return of property" it is clear that it contemplates the suppression only of tangible physical evidence. See, Jarrell v. State, 234 Ga. 410(3), 216 S.E.2d 258 (1975); Reid v. State, 129 Ga.App. 660, 200 S.E.2d 456 (1973). We will not follow the expansive interpretation given to Code Ann. § 27-313 by the Court of Appeals in the case before us.

2) However, the State's arguments to the contrary notwithstanding, the compelled administration of a breath test designed to ascertain blood alcohol content undoubtedly implicates Fourth Amendment rights. ¹ Compare, U. S. v. Weir, 657 F.2d 1005 (8th Cir. 1981) (hair sample); and U. S. v. Sechrist, 640 F.2d 81 (7th Cir. 1981) (fingerprints).

Johnston contended in his motion to suppress that there was no probable cause for his arrest, and that the results of the breath test were fruits of an illegal arrest. See, Brown v. Illinois, 422 U.S. 590, 95 S.Ct. 2254, 45 L.Ed.2d 416 (1975); and Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966). Since the State presented no evidence at the hearing on the motion to suppress, the court did not err in ordering that "the tangible evidence seized as a result of the photoelectric intoximeter administered to the Defendant on October 28, 1979, be and is hereby suppressed in any criminal trial of this Defendant." ² Meeks v. State, 150 Ga.App. 170, 257 S.E.2d 27 (1979).

3) Those portions of Johnston's motion to suppress alleging non-compliance with Code Ann. § 68A-902.1 or regulations of the Department of Public Safety do not involve "constitutional guarantees against unreasonable search and seizure." Hawkins v. State, supra. Thus, a motion to suppress is not a proper procedural device to deal with such allegations. That does not mean, however, that such allegations may not be considered prior to trial.

The trial court is not bound by the nomenclature used by a party. Holloway v. Frey, 130 Ga.App. 224(3), 202 S.E.2d 845 (1973). Although Johnston's motion was styled a "Motion to Suppress," the trial court could treat it as a motion in limine. Wiggins v. State, 249 Ga. 302, 290 S.E.2d 427 (1982).

A motion in limine is a pretrial ³ motion which may be used two ways: 1) The movant seeks, not a final ruling on the admissibility of evidence, but only to prevent the mention by anyone, during the trial, of a certain item of evidence or area of inquiry until its admissibility can be determined during the course of the trial outside the presence of the jury. Lagenour v. State, 268 Ind. 441, 376 N.E.2d 475, 481 (1978); Twyford v. Weber, 220 N.W.2d 919 (Iowa 1974); Redding v. Ferguson, 501 S.W.2d 717, 722 (Tex.Civ.App.1973). 2) The movant seeks a ruling on the admissibility of evidence prior to the trial. The trial court has an absolute right to refuse to decide the admissibility of evidence, allegedly violative of some ordinary rule of evidence, prior to trial. Cf. Wiggins v. State, supra; Coats v. State, 234 Ga. 659, 217 S.E.2d 260 (1975). If, however, the trial court decides to rule on the admissibility of evidence prior to trial, the court's determination of admissibility is similar "to a preliminary ruling on evidence at a pretrial conference" and it "controls the subsequent course of action, unless modified at trial to prevent manifest injustice." Harley-Davidson Motor Co. v. Daniel, 244 Ga. 284, 285-6, 260 S.E.2d 20 (1979).

The results of a breath test are not admissible over objection unless a proper foundation is laid. Nelson v. State, 135 Ga.App. 212, 217 S.E.2d 450 (1975); State v. Baker, 146 Ga.App. 608, 247 S.E.2d 160 (1978). The state failed to lay the foundation. The trial court, having decided to rule on the admissibility of evidence...