Deckard v. State, A93A1488
| Decision Date | 29 September 1993 |
| Docket Number | No. A93A1488,A93A1488 |
| Parties | DECKARD v. The STATE. |
| Court | Georgia Court of Appeals |
King & King & Jones, David H. Jones, John C. Leggett, Atlanta, for appellant.
Ralph T. Bowden, Jr., Sol., Eleanor A. Kornahrens, W. Cliff Howard, Asst. Sols., for appellee.
Deckard was charged by accusation with driving under the influence of alcohol, OCGA § 40-6-391 (a)(1), and driving with an unlawful alcohol concentration, OCGA § 40-6-391 (a)(4). The interlocutory review challenges the order denying a motion in limine 1 which seeks to exclude from evidence at trial the results of a State-administered chemical breath test. Deckard contends that the State improperly obtained his consent to the test because the investigating officer misinformed him that his refusal would result in a six-month suspension of his out-of-state driver's license, a penalty which the State was unauthorized to carry out. The test results should have been excluded from evidence.
A DeKalb County police officer on patrol on October 17, 1992, observed Deckard's vehicle speeding and having difficulty staying within his lane of traffic. After initiating a traffic stop, the officer detected a "moderate odor of alcoholic beverage on or about his person." Upon request, Deckard produced a valid driver's license issued by the State of Tennessee. When he was unable to successfully perform a series of field sobriety tests, he was arrested, secured in the patrol car and notified of his rights under the Implied Consent Statute, OCGA § 40-5-55, as follows:
According to the officer, appellant verbally indicated his understanding of the consent notice and initialed and signed a form confirming that understanding and agreeing to take the requested test. He declined a second test.
Deckard was misinformed as to the consequences of his failure to submit to chemical analysis because the Georgia Department of Public Safety is without authority to absolutely suspend or revoke a nonresident's driver's license. OCGA § 40-5-51 (a) provides that as to a nonresident driver of a motor vehicle, Georgia may suspend or revoke only the "privilege of driving a motor vehicle on the highways of this state ... in like manner and for like cause as a driver's license issued under this chapter may be suspended or revoked." Id.
We note that effective January 1, 1993, the implied consent notice read to suspected DUI offenders was amended to include: "If you are a non-resident, Georgia is only authorized to suspend your privilege to operate a motor vehicle in the State of Georgia." The language was apparently added to conform with the enactment of OCGA § 40-5-67.1 (d), Ga.L.1992, p. 2564, § 6, effective January 1, 1993, which provides that the failure of a nonresident DUI arrestee to submit to chemical testing for the purpose of detecting the presence of alcohol will result in the suspension of that person's "nonresident operating privilege for a period of one year...."
In Beasley v. State, 204 Ga.App. 214 (1), 419 S.E.2d 92 (1992), defendant was asked by police to submit to urine testing to detect the presence of illegal drugs and was told that the test results would be used as a consideration in setting bond. Defendant consented and tested positive for cocaine. As a consequence, his bail was increased and he was also charged with possession of cocaine. This court reversed the denial of a motion to suppress the test results finding that defendant's consent was not voluntary because it was "premised on the incomplete and thus deceptively misleading information," id. at 216, 419 S.E.2d 92, received from police concerning the purpose for which the results would be used.
In Sorrow v. State, 178 Ga.App. 83, 342 S.E.2d 20 (1986), a DUI arrestee was informed of his rights under the Implied Consent Statute and initially agreed to be tested but then declined when informed by police that his provisional license had been revoked. It was subsequently determined that his license was valid. It was held that evidence of his refusal to submit to testing was properly introduced at trial because defendant was correctly informed of the statutory options, and the mistake, which was an honest one, "had nothing to do with the defendant's options under the Implied Consent Statute." Id. at 84, 342 S.E.2d 20.
In Whittington v. State, 184 Ga.App. 282 (2), 361 S.E.2d 211 (1987), a DUI suspect was...
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Kitchens v. State
...an informed choice under the Implied Consent Statute. Accordingly, the test results were rendered inadmissible." Deckard v. State, 210 Ga.App. 421, 423, 436 S.E.2d 536 (1993). See also State v. Coleman, 216 Ga.App. 598, 599, 455 S.E.2d 604 (1995). But see Rojas v. State, 235 Ga.App. 524, 52......
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