Gray v. State

• Decision Date: 29 August 1996
• Docket Number: No. A96A1468,A96A1468
• Citation: 222 Ga.App. 626,476 S.E.2d 12
• Parties: GRAY v. The STATE.
• Court: Georgia Court of Appeals

Page 12

476 S.E.2d 12

222 Ga.App. 626

GRAY v. The STATE.

No. A96A1468.

Court of Appeals of Georgia.

Aug. 29, 1996.

William C. Head, Atlanta, for appellant.

Paul L. Howard, Jr., Solicitor, Rhonda L. Brodsky, Atlanta, Deborah W. Espy, Conyers, Allison L. Byrd, Augusta, Assistant Solicitors, for appellee.

ELDRIDGE, Judge.

At the trial the evidence showed that at approximately 11:20 p.m. on May 19, 1994, appellant, while driving a Porsche north on Riverside Drive in north Fulton County, missed an almost 90-degree curve to the right, crossed both lanes of traffic, hit the guardrail head on, passed under the rail, and plunged some 110 feet down an embankment into some woods. The Porsche left approximately 60 feet of parallel straight skid marks, which indicated that the car slid past the curve without any turning and straight into the guardrail at a right angle.

Appellant ended up in the front yard of Mr. and Mrs. D.B. Plymale. When they heard the crash, they immediately called 911 because, from long experience, they knew someone had wrecked on the severe curve above their house. They went outside and found appellant coming from the woods. While visibly shaken, appellant answered their questions coherently, rationally and intelligibly. From observing appellant, Mr. Plymale formed the opinion that appellant had been drinking because of appellant's slurred speech, unsteadiness on his feet, and appearance.

Officer R.S. Jamison, Fulton County Police Department, arrived on the scene within minutes after the call, checked the evidence on the roadway, and came down the driveway where he found appellant. Appellant had a minor laceration on his forehead, denied further injury except for a sprain to his right elbow, and refused medical attention. Jamison made a preliminary accident investigation to determine what had happened. Appellant admitted to having been driving but did not state when or how much he had drunk. Appellant stated that the accident occurred when he lost control of the car while attempting to avoid colliding with a car fish-tailing in front of him.

Jamison found no evidence of swerving or other evasive action by appellant and formed the opinion that appellant had been driving too fast to negotiate the bad curve. Appellant produced only a Kentucky driver's license and no proof of insurance. He had been a resident of Georgia for about two months.

Observing a fairly strong odor of alcohol, very slurred speech, unsteady gait and balance, and glassy, watery bloodshot eyes, Officer Jamison asked appellant if he would voluntarily submit to the standardized field sobriety tests. From his training and certification, Jamison properly instructed, demonstrated, described, and conducted appellant through the alphabet recitation, one-leg stand, heel and toe, and horizontal gaze nystagmus tests. Appellant scored the maximum that would indicate alcohol impairment.

While Jamison conducted these tests, Corporal R.D. Nable of the DUI Task Force arrived and observed the tests being conducted. As a result of appellant's poor performance on the tests, he was asked to voluntarily submit to the administering of an alco-sensor test by Nable who had been trained and certified in conducting such tests. He testified that the alco-sensor design had been approved for use in screening for alcohol consumption by the Division of Forensic Sciences ("DFS") for the GBI and that his training to use the device had also been approved by DFS.

In describing the alco-sensor Jamison stated that it had "a little digital readout," but he did not indicate any reading or state that appellant failed the test; he did indicate that the test result indicated positive for alcohol consumption. Nable described the machine as having a readout that is "numerical," but he did not state any reading or indicate that appellant failed the test; he stated that the test showed positive for alcohol consumption.

Both officers stated that based upon their training, experience, and observation of appellant that his conduct, appearance, and speech as well as the test results indicated that appellant had consumed sufficient alcohol to render him less safe to operate a motor vehicle. Appellant was then arrested. At no time prior to appellant's arrest was he advised of his rights under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), because he was not in custody.

1. Appellant's first enumeration of error contends that the trial court erred in admitting evidence of the alco-sensor test where the proper foundation had not been laid and where the trial court denied appellant's motion for mistrial or curative instructions. Turrentine v. State, 176 Ga.App. 145, 146(1), 335 S.E.2d 630 (1985), held that OCGA § 40-6-392 did not apply to the alco-sensor test, because such tests are not admissible as " ' evidence of the amount of alcohol or drug in a person's blood ... as determined by a chemical analysis of the person's ... breath ....' " (Emphasis omitted.) Instead, the alco-sensor is used as an initial screening device to aid the police officer in determining probable cause to arrest a motorist suspected of driving under the influence of alcohol. See Channell v. State, 172 Ga.App. 156, 322 S.E.2d 356 (1984); State v. Golden, 171 Ga.App. 27, 318 S.E.2d 693 (1984). While the Court approved the method of laying the foundation for testimony regarding the alco-sensor in that case, the Court did not hold that such foundation was the only permissible method to prove "that the device is of a design approved by the DFS." Turrentine v. State, 176 Ga.App. 145, 146, 335 S.E.2d 630, supra.

Where the arresting officer testifies that the subject "failed" the alco-sensor test, this indicates a conclusion of law and fact that the blood alcohol level meets the statutory minimum for conviction. Thus, under Channell v. State, 172 Ga.App. 156, 322 S.E.2d 356, supra, the Court reversed where the arresting officer gave testimony without a foundation that the defendant "failed" the alco- sensor test. Since the test was being used to indicate the blood alcohol level instead of merely being used as a screening test, then the test had to satisfy the foundational requirements of OCGA § 40-6-392(a)(1), which it failed to do from the evidence introduced at trial. The Court held, "[b]ecause the required foundation was not laid in the case before us, we hold that the trial court erred in admitting the officer's testimony that the appellant 'failed' the roadside sobriety test which he had administered to her." Channell v. State, 172 Ga. App. 156, 157, 322 S.E.2d 356, supra.

In Turrentine v. State, 176 Ga.App. 145, 335 S.E.2d 630, supra, the Court held that the alco-sensor did not come within the ambit of OCGA § 40-6-392, because the test did not measure the amount of alcohol or drugs in the blood but was merely a screening device to show the presence of alcohol in the body. However, to allow the officer administering the test to testify that the defendant "failed" the test, the foundation had to be laid in some fashion that the DFS standards had been satisfied for such admissibility of testimony. Accord Ronskowsky v. State, 190 Ga.App. 147, 148(2), 378 S.E.2d 185 (1989).

"This court has recognized that an alco-sensor test is not evidence of the amount of alcohol in a person's blood, but is rather a screening device to determine whether there is probable cause that a defendant is driving under the influence of alcohol. [Cits.] Although Ronskowsky v. State, [supra], affirmed the admission of the results of an alco-sensor test where the State introduced a document certifying the device had been approved by the GBI's Division of Forensic Services, this does not mean its measurement of the amount of alcohol percentage was permitted. Ronskowsky was based on Turrentine, supra, which distinguished between the alco-sensor results, which are used to alert the officer to the presence of alcohol, and the intoximeter test, which is used to gauge the amount of alcohol. The officer in this case was permitted to testify that the test showed the presence of alcohol." (Emphasis omitted.) Mendoza v. State, 196 Ga.App. 627, 629(3), 396 S.E.2d 576 (1990). The facts set forth in this opinion do not indicate that a foundation was required to be laid for such restricted testimony regarding the test results; the better practice should be that if the officer has been trained in the standardized field sobriety tests and in the operation of field alcohol screening tests such as the alco-sensor, then the officer is competent to testify that the device has been approved by the DFS to lay the foundation for his testimony that there was a positive result for the presence of alcohol in the body, since probable cause for arrest has a less restrictive evidentiary standard for admissibility, hearsay, and secondary evidence. See Smith v. Stynchcombe, 234 Ga. 780, 218 S.E.2d 63 (1975); Callahan v. State, 179 Ga.App. 556, 561(3), 347 S.E.2d 269 (1986); see also as to foundation, Keenan v. State, 263 Ga. 569, 571-572(2), 436 S.E.2d 475 (1993); Porche v. State, 217 Ga.App. 325, 457 S.E.2d 578 (1995).

No foundation was required in Hunter v. State, 143 Ga.App. 541, 543(5), 239 S.E.2d 212 (1977) because this involved a screening test to determine the presence of alcohol for purposes of determining probable cause to arrest for DUI. The Court held, "[t]he trial court did not err in allowing testimony on the breathalizer into evidence. At trial, the state emphasized that the test was not designed to measure the amount of alcohol in the blood but that it was used to confirm the officer's belief that alcohol was present in the driver's body systems. The state never attempted to rely on the breathalizer test as a measure of the defendant's degree of intoxication. Therefore, the test was not governed by the limitations in [OCGA § 40-6-392]." Id.

We find that a proper foundation for the testimony of the officer...