Pierce v. State, 69461

• Decision Date: 26 February 1985
• Docket Number: No. 69461,69461
• Parties: PIERCE v. The STATE.
• Court: Georgia Court of Appeals

Page 531

327 S.E.2d 531

173 Ga.App. 551

PIERCE v. The STATE.

No. 69461.

Court of Appeals of Georgia.

Feb. 26, 1985.

Robert F. Webb, Kennesaw, for appellant.

Ralph Bowden, Sol., Nancy H. Jackson, Asst. Sol., for appellee.

CARLEY, Judge.

Appellant appeals his conviction for driving under the influence.

1. Prior to trial, appellant filed a "Motion In Limine and Motion To Suppress Evidence." The motions contested the admissibility of the results of a chemical test of appellant's breath. A hearing was conducted on the motions, and appellant urged the exclusion of the evidence on the ground that, contrary to the mandate of OCGA § 40-6-392(a)(1), the rules and regulations concerning chemical tests have never been promulgated by the Georgia Bureau of Investigation (GBI). The trial court refused to exclude the evidence on this ground and appellant enumerates this ruling as error.

In State v. Holton, 173 Ga.App. 241, 326 S.E.2d 235 (1984), this court held that promulgation of the rules and regulations by the Department of Public Safety constituted substantial compliance with the statutory requirements of OCGA § 40-6-392(a)(1). Accordingly, the ruling of the trial court in the instant case was not erroneous. "We nevertheless encourage the GBI through its Division of Forensic Sciences to proceed with all deliberate speed to promulgate, and update, the implied consent rules in full compliance with the ... statutes...." (Emphasis in original.) State v. Holton, supra at 246, 326 S.E.2d 235.

2. At the pre-trial hearing, the State offered no evidence to show that, at the time of appellant's arrest, he had been informed of his right to an additional test. At the conclusion of the hearing, appellant urged that the State's failure of proof in this regard required that the test results be excluded from admission into evidence at trial. The trial court refused to make a final ruling based upon the State's failure of proof at the pre-trial hearing. Instead, the trial court reserved its decision and held that if the State did not produce evidence "at the trial of the case" that appellant had been properly informed of his rights, the test results would then be ruled inadmissible. On appeal, appellant asserts that the trial court erred failing to rule that, because of the State's failure of proof at the pre-trial hearing, the evidence would not be admissible at the subsequent trial.

In State v. Johnston, 249 Ga. 413(1), 291 S.E.2d 543 (1982), the Supreme Court held that a motion to suppress " 'furnishes a procedural device for the protection of constitutional guarant[e]es against unreasonable search and seizure only.' [Cit.]" (Emphasis supplied.) Allegations of "non-compliance with [OCGA § 40-6-392] or regulations of the Department of Public Safety do not involve [such] 'constitutional guarant[e]es ...' [Cit.] Thus, a motion to suppress is not a proper procedural device to deal with such allegations." (Emphasis supplied.) State v. Johnston, supra at 414, 291 S.E.2d 543. Accordingly, it was only those portions of appellant's pre-trial motion which sought exclusion of the test results on constitutional grounds that were subject to the procedural rules governing a motion to suppress, such as the rule that the contested evidence must be suppressed if the State does not meet its burden of proof at the pre-trial hearing. See generally State v. McNutt, 146 Ga.App. 369, 246 S.E.2d 402 (1978).

Under State v. Johnston, supra, the proper procedural device by which to obtain a pre-trial ruling on the admissibility of evidence based upon alleged violations of OCGA § 40-6-392 is a motion in limine. Unlike a motion to suppress, the mere filing of a motion in limine does not mandate that the trial court make a pre-trial ruling. "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. [Cits.]" State v. Johnston, supra, 249 Ga. at 415, 291 S.E.2d 543. Thus, appellant had no right to insist upon a pre-trial ruling on his OCGA § 40-6-392 allegations, as against the trial court's "absolute right" to defer its ruling on such allegations until the actual trial.

State v. Johnston does recognize that a trial court may elect to rule on a motion in limine prior to trial. As demonstrated by Division 1, the trial court in the instant case did hear and rule on certain allegations of inadmissibility which were based upon OCGA § 40-6-392, which allegations were properly considered only in the context of appellant's motion in limine. However, we do not construe State v. Johnston as authority for holding that a trial court's decision to make a pre-trial ruling as to certain grounds raised by a motion in limine constitutes a waiver of its otherwise "absolute right" to defer until trial its ruling as to other grounds raised by the motion. In Johnston, supra, the trial court had elected to make a pre-trial ruling as to all allegations of inadmissibility which had been raised. It was only because this election had been made that the State's subsequent failure to lay the full foundation for the admissibility of the evidence resulted in the pre-trial exclusion of the test results. State v. Johnston, supra at 415, 291 S.E.2d 543. The instant case presents the reverse situation. The trial court elected not to make a ruling until trial on appellant's allegation that, at the time of his arrest, he had not been informed of his right to an additional test. The trial court having made this election, there was no requirement upon the State at the pre-trial hearing to address this element of the "foundation for the admissibility of the evidence ...." State v. Johnston, supra at 415, 291 S.E.2d 543.

There is no assertion that the State did not demonstrate, during the course of appellant's actual trial, that there was compliance with OCGA § 40-6-392. Appellant was not entitled to have that compliance demonstrated in its totality before trial. Appellant's second...