Hunter v. State
| Decision Date | 16 May 1989 |
| Docket Number | No. A89A0765,A89A0765 |
| Parties | HUNTER v. The STATE. |
| Court | Georgia Court of Appeals |
Galis & Packer, Denny C. Galis, Athens, for appellant.
Ken Stula, Sol., Kristopher Shepherd, Asst. Sol., for appellee.
Defendant was convicted of driving under the influence, OCGA § 40-6-391(a)(1), and failure to drive within the proper lane of traffic, OCGA § 40-6-48(1). The primary issue was whether he refused the statutory chemical test. OCGA § 40-5-55.
Defendant was seen by two University of Georgia police officers at 2:15 a.m. on the campus of the university. He pulled out of a parking lot into a four lane road. After he pulled into his lanes, his front wheels crossed the double centerline. The officers followed him and defendant began to exceed the speed limit and weaved across the lines. The police turned on their blue lights and attempted to pull defendant over; he continued for .7 of a mile before stopping. Defendant failed two out of three field tests. He refused to take an Alco-Sensor test and was arrested. An empty beer can and bottle were seen in the car. The officers repeatedly read to him the implied consent warnings, which he said he did not understand. The warnings were re-read on the way to the police station and explained in everyday language, but defendant continued to say he did not understand. He was asked at the station if he knew how to read and was given the warning advice card which he appeared to read. When Officer Ahmed began administering the intoximeter test and asked if he would blow into the tube, he continued to say he didn't know, he didn't understand.
Officer Thompson, who was observing, took this as a non-verbal refusal. According to test administrator Ahmed, defendant at one point said he would take the test, she told him to blow into the tube, and he said he was not sure and asked for another explanation. The machine cleared itself and would have had to be reprogrammed before the test could be administered again. At this point the officer told him he could not take the test.
The State moved in limine at the beginning of trial to exclude from evidence any mention of the fact that defendant's license, which had been suspended pursuant to OCGA § 40-5-55(c), had been reinstated by the State Patrol hearing officer. Defendant sought a ruling that the following letter signed by the hearing officer was admissible as probative of the issue of his refusal to take the test pursuant to OCGA § 40-6-392(c): "You are hereby officially notified by the Department of Public Safety that your driver's license will not be suspended under the Implied Consent Law and that the six months' suspension under said law is hereby withdrawn." The grant of the State's motion and the exclusion of this letter are asserted as error.
Defendant acknowledges that the status of his driver's license as a result of the OCGA § 40-5-55 hearing is not relevant to the issue of whether he was driving under the influence. He urges that since a substantive hearing was held and one of the arresting officers and he both testified, the reinstatement of his license amounted to res judicata as to his refusal to take the test and was admissible under OCGA § 40-6-392(c). It provides: "In any criminal trial, the refusal of the defendant to permit a chemical analysis to be made of his blood, breath, urine, or other bodily substance at the time of his arrest shall be admissible in evidence against him."
Defendant cites Sheffield v. State, 184 Ga.App. 141, 361 S.E.2d 28 (1987) (physical precedent only) and Wyatt v. State, 179 Ga.App. 327, 346 S.E.2d 387 (1986), distinguishing them but using their language to urge support for his position. In both cases, and in Smith v. State, 180 Ga.App. 309, 349 S.E.2d 4 (1986), license suspensions were administratively withdrawn due to the failure of the arresting officer to appear at the hearing.
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