Cadden v. State

• Court: Georgia Court of Appeals
• Writing for the Court: COOPER; BIRDSONG, P.J., and BLACKBURN
• Citation: Cadden v. State, 444 S.E.2d 383, 213 Ga.App. 291 (Ga. App. 1994)
• Decision Date: 24 May 1994
• Docket Number: No. A94A0899,A94A0899
• Parties: CADDEN v. The STATE.

Page 383

444 S.E.2d 383

213 Ga.App. 291

CADDEN v. The STATE.

No. A94A0899.

Court of Appeals of Georgia.

May 24, 1994.

Waycaster, Corn & Morris, Marcus R. Morris, Dalton, for appellant.

Jack O. Partain III, Dist. Atty., Herbert M. Poston, Jr., Asst. Dist. Atty., for appellee.

COOPER, Judge.

Defendant was convicted by a jury of driving under the influence and improper lane change. His sole enumeration on appeal is the trial court's denial of his motion in limine to suppress the results of an intoximeter test.

After observing defendant make several traffic violations, Officer Phillip Herren of the Whitfield County Sheriff's Department stopped defendant's car. Officer Herren detected the odor of alcoholic beverage on defendant and also noticed that defendant was unsteady on his feet, that his eyes were red and that his speech was slurred. After defendant failed several field sobriety tests, Officer Herren placed defendant under arrest and read him the implied consent warning. Defendant was taken to jail and given an Intoximeter 3000 breath test which produced a reading of .11 grams percent. Defendant asked for another breath test and was given a second test 13 minutes later. The second test produced a reading of .09 grams percent. Because of the discrepancy in test results defendant requested an independent blood test.

At the hearing on defendant's motion in limine to suppress the results of the intoximeter test, Officer Herren testified that defendant used a pay telephone to call the hospital to find out how much the blood test cost. After making the call, defendant told Officer Herren he did not have the money. Officer Herren asked defendant if there was any way to contact someone who could bring defendant the money. Defendant said there was no one at his home, and the passenger in defendant's vehicle refused to go to defendant's house to get the money. When defendant asked Officer Herren to take him home to get some money, Officer Herren refused, but told defendant he would call someone for him or take him to a teller machine to get money for the test. Defendant testified that he did not call the hospital and that the officer told him the test cost $138 in cash. Although defendant had between $60 and $70 in cash and some credit cards with him at the station, he did not tell the officer about the credit cards because he had been told payment for the test must be in cash. The passenger then arranged for defendant's bond, and defendant was released. After his release, defendant made no attempt to have a blood test.

"Questions of credibility arising out of conflict in testimony regarding the circumstances of pursuing the additional testing are for resolution by the court. On appeal evidence must be viewed in the light most favorable to support the verdict; an appellate court determines evidence sufficiency and does not weigh evidence or determine witness credibility." (Citations and punctuation omitted.) Melvin v. State, 205 Ga.App. 799, 801(1a), 423 S.E.2d 718 (1992).

"OCGA § 40-6-392(a)(3) allows one accused of driving under the influence of alcoholic beverages the right to have a...