Brooker v. State, A92A0902

• Decision Date: 20 November 1992
• Docket Number: No. A92A0902,A92A0902
• Citation: 206 Ga.App. 563,426 S.E.2d 39
• Parties: BROOKER v. The STATE.
• Court: Georgia Court of Appeals

Page 39

426 S.E.2d 39

206 Ga.App. 563

BROOKER v. The STATE.

No. A92A0902.

Court of Appeals of Georgia.

Nov. 20, 1992.

Reconsideration Denied Dec. 3, 1992.

Certiorari Denied March 4, 1993.

Schreeder, Wheeler & Flint, J. Christopher Desmond, Atlanta, for appellant.

Patrick H. Head, Sol., Susan M. Miller, Asst. Sol., for appellee.

CARLEY, Presiding Judge.

After a bench trial, appellant was found guilty of speeding. He appeals from the judgment of conviction and sentence entered by the trial court on its finding of guilt.

1. Over objection, the trial court admitted evidence of speed obtained by use of a radar speed detection device operated by a Cobb County law enforcement officer. Appellant enumerates this ruling as error, contending that the State failed to lay a proper foundation for admission of the evidence in accordance with the requirements of OCGA § 40-14-1 et seq.

County, municipal, and campus law enforcement officers "may use speed detection devices only if the governing authorities of [their respective jurisdictions] ... shall apply to the Department of Public Safety [ (DPS) ] for a permit to use such devices in accordance with [OCGA § 40-14-1 et seq.]." OCGA § 40-14-2(a). In the instant case, the State submitted copies of DPS permits issued to the Cobb County Board of Commissioners "for the use of a speed detection device at [certain specifically] authorized location(s)...." These permits, to which no objection was raised, were signed by the Commissioner of DPS. The Commissioner of DPS is a public officer and is "presumed to discharge [his] duties properly, and [his signature] speak[s] with verity as to the same. [Cit.] Thus, the [DPS permits] are presumed to speak with verity. [Cit.]" Oller v. State, 187 Ga.App. 818, 820(2), 371 S.E.2d 455 (1988). See also Mash v. State, 168 Ga.App. 491, 492(2), 309 S.E.2d 673 (1983).

According to the DPS permits, the Cobb County Board of Commissioners had "submitted an application in proper form for a permit for the use of a speed detection device at [certain specified] location(s)...." Thus, the DPS permits constitute presumptive evidence of compliance with OCGA § 40-14-3(a), which provides: "The governing authority of any county ... may apply to [DPS] for a permit to authorize the use of speed detection devices for purposes of traffic control within such counties ... on streets, roads, and highways, provided the ... county ... shall name the street or road on which the device is to be used and the speed limits on such street or road shall have been approved by the Division of Traffic Engineering and Safety of the Department of Transportation."

The DPS permits also provide that the Cobb County Board of Commissioners had shown "compliance with all applicable laws, rules and regulations...." Thus, the DPS permits would likewise constitute presumptive evidence of compliance with that portion of OCGA § 40-14-4 which provides that "[n]o ... county ... law enforcement agency may use speed detection devices unless the agency possesses a license in compliance with Federal Communications Commission [ (FCC) ] rules...." Appellant's reliance upon Wiggins v. State, 249 Ga. 302, 304(2), 290 S.E.2d 427 (1982) as authority for the proposition that the State must produce the actual FCC license is misplaced. The actual FCC license was produced in Wiggins, but the issue there was evidence of speed obtained by a radar speed detection device operated by a state law enforcement officer. Although a state law enforcement agency is required to obtain the same FCC license as a county law enforcement agency, it is not required to obtain the DPS permit that the county must secure pursuant to OCGA § 40-14-2(a). Accordingly, in a case where the radar detection device was operated by a state officer, the DPS permit cannot be relied upon as presumptive evidence of "compliance with all applicable laws, rules and regulations," including the requirement that an appropriate FCC license has been obtained by the state law enforcement agency. Because the instant case involves a radar detection device operated by a county officer, however, the DPS permit that was issued to the Cobb County Board of Commissioners "for the use of a speed detection device" can be relied upon as presumptive evidence of "compliance with all applicable laws, rules and regulations" regarding that use...