Cogdill v. Department of Public Safety, 50453
| Decision Date | 03 July 1975 |
| Docket Number | No. 50453,No. 1,50453,1 |
| Citation | 217 S.E.2d 502,135 Ga.App. 339 |
| Parties | Robert COGDILL v. DEPARTMENT OF PUBLIC SAFETY |
| Court | Georgia Court of Appeals |
Henry N. Payton, Newnan, for appellant.
Arthur K. Bolton, Atty. Gen., Robert S. Stubbs, II, Executive Asst. Atty. Gen., Michael W. Dyer, Don A. Langham, H. Andrew Owen, Jr., Asst. Attys. Gen., Janice J. Christian, Atlanta, for appellee.
Appellant was arrested on May 11, 1974, by a Georgia state trooper for driving under the influence of alcohol (Ga.L.1953, Nov.-Dec. Session, pp. 556, 575; 1968, pp. 448, 449; 1974, pp. 633, 671 (Code Ann. § 68A-902)), and informed that he was required to submit to either a blood or breath test and that his failure to comply would result in the suspension of his driver's license. He refused to submit to a blood test and requested a lawyer. The trooper signed an affidavit of appellant's refusal and appellant was taken home.
On June 7, 1974, appellant was notified by mail that unless he requested a hearing within ten days after the receipt of the notice, his license would be suspended effective June 17. On June 13, appellant's lawyer requested a hearing. The hearing was held on July 3, and resulted in the suspension of appellant's license. He appealed to the Department of Public Safety, which affirmed, and to the Superior Court of Coweta County, which affirmed. The suspension of his license was stayed during these appeals. His appeal to this court enumerates two errors: (1) that the suspension proceeding deprived him of his constitutional rights of due process, and (2) that he was denied his Sixth Amendment right to counsel. Held:
1. Appellant contends that the proceedings to suspend his driving privileges under the implied consent law (Ga.L.1968 pp. 448, 452 (section 47A), repealed in part by Ga.L.1974, pp. 633, 691, 694, 698 (Code Ann. § 68-1625.1)) were violative of his due process rights under the United States Constitution in that they required suspension of his license before a hearing, they placed the burden on the licensee to protect himself by applying for a hearing, and that there was a danger that the suspension notice could be lost in the mail. These contentions are without merit. The statute clearly provides, 'No such suspension shall become effective until 10 days after the giving of written notice thereof as provided for in subsection (c).' Ga.L.1968, 448, 453 (section 47A(b)) (Code Ann. § 68-1625.1(b)). (Emphasis supplied.) Subsection (c) provides: It is clear under the statute that procedural due process rights are afforded appellant before he is deprived of any rights or privileges. See Davis v. Pope, 128 Ga.App. 791(3), 197 S.E.2d 861, where we held, 'Hence, the application of the Implied Consent Law does not offend the constitutional provisions respecting due process in any manner.' Nothing in Bell v. Burson, 402 U.S. 535, 91 S.Ct. 1586, 29 L.Ed.2d 90, requires a different result.
2. Appellant also contends that he was entitled to the presence of a lawyer, as he requested, at the time he was asked to submit to a chemical test, to advise him whether or not he should comply with the implied consent law. Whether or not the administration of a chemical test, or the appellant's decision not to submit to it, is a 'critical stage' to which the Sixth Amendment right to counsel applies (United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149; Powell v. Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158; Creamer v. State, 229 Ga. 511, 527, 192 S.E.2d 350), this issue has been settled adversely to the appellant in Davis v. Pope, supra. We hold that '(The appellant) did not have the right of co...
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State v. Epperson
...Chapman, 268 Cal.App.2d 1, 74 Cal.Rptr. 363 (1968); Calvert v. State, 184 Colo. 214, 519 P.2d 341 (1974); Cogdill v. Department of Public Safety, 135 Ga.App. 339, 217 S.E.2d 502 (1975); State v. Severino, 56 Haw. 378, 537 P.2d 1187 (1975); Mills v. Bridges, 93 Idaho 679, 471 P.2d 66 (1970);......
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