Hyatt v. State, 50449
| Decision Date | 17 April 1975 |
| Docket Number | No. 3,No. 50449,50449,3 |
| Citation | 215 S.E.2d 698,134 Ga.App. 703 |
| Parties | Billy W. HYATT v. The STATE |
| Court | Georgia Court of Appeals |
Syllabus by the Court
1. (a) A police officer who observes a traffic offense being committed in his presence has a right to arrest without a warrant, to take the offender to a testing center and unless objection is made, to have administered a test to determine the percentage of alcohol in his body.
(b) Where the defendant immediately thereafter is permitted to and does make bond for his appearance to answer the charge of driving under the influence of intoxicants, there is no requirement that an arrest warrant be procured at the time of or following his release. Evidence of the test results is not evidence illegally procured, and the motion to suppress this testimony on this ground was properly denied.
2. (a) The Director of the Division of Public Safety has statutory authority to develop a uniform citation to be used in lieu of an accusation or complaint. But it must appear in some manner that the form used, when otherwise defective as an accusation is in fact a form so developed and approved. Otherwise, since the defendant is entitled to be tried on an accusation perfect in form and substance, a citation such as the present one which does not issue from a court and is not instituted by the solicitor as the statute requires, is inadequate for the purpose if challenged properly, as by a motion to quash.
(b) The citation used here, although bearing the heading 'Georgia Uniform Traffic Citation Summons, Accusation' nowhere indicates that it was in fact developed or approved by the Director of the Division of Public Safety.
3. After proper demand, failure to furnish a proper list of witnesses to the defendant results in the exclusion of the testimony of those whose names do not appear. The court erred in allowing the testimony of the witness for the state who had administered the test for intoxication over objection urged on this ground.
Hyatt was stopped by police officers which driving his automobile in an erratic manner and over the center line of a public road, arrested, issued a form captioned as a uniform traffic citation, given an intoxication test to which he did not object, and then allowed to make bond for his appearance in the State Court of Cobb County to answer a charge of driving while under the influence of intoxicants. A motion to suppress evidence was made and denied. The defendant appeals from conviction following a jury trial.
Spence & Knighton, Judson R. Knighton, Marietta, for appellant.
Paul F. Carden, Sol., Marietta, for appellee.
1. Dode Ann. § 27-222 provides: 'Notwithstanding any other provision of any law to the contrary, a law enforcement officer may arrest persons accused of violating any law or ordinance governing the operation, licensing, registration, maintenance and inspection of motor vehicles by the issuance of a citation, providing said offense is committed in his presence . . . which shall enumerate the specific charges against such person and the date upon which said person is to appear and answer said charges.' Code Ann. § 68-1625.1 provides that the operator of a motor vehicle on a public road 'shall be deemed to have given his consent to a chemical test' to determine intoxication, if lawfully arrested for any offense allegedly committed while the person was operating a vehicle under the influence of intoxicants.
The defendant was stopped because he was driving on the wrong side of the road and weaving; officers determined from his behavior and odor that he had been drinking, arrested him, took him to a center where a test was made, and determined that he was in fact intoxicated. He was given a citation, taken to the station house, required to make bond, and released. This action was not in violation of Code Ann. § 27-212 requiring that on arrest without a warrant the person shall be conveyed before a committing magistrate without delay, and any person not conveyed before such officer within 48 hours shall be released. This section controls time of captivity before a hearing; habeas corpus will lie if it exceeds 48 hours. It does not automatically void the legality of the arrest itself in such manner as to render inadmissible the result of the 'breatholyzer' test because not a product of a 'legal arrest.' Peters v. State, 115 Ga.App. 743(1)(2), 156 S.E.2d 195.
2. But it is contended that the only possible circumstances under which a defendant so arrested could be taken to the station house and required to make bond is under Ga.L.1972, pp. 1148, 1149 (Code Ann. § 92A-2701), providing that the Director of the Department of Public Safety shall develop a uniform traffic citation and complaint form which shall serve as the citation, summons, accusation or other instrument of prosecution for violations of traffic laws, which form shall have a unique identifying number which shall serve as the docket number for the court before which the case is tried. The citation form used here has two sets of printed numbers and two sets of inked numbers, one of the latter being the same as the docket number. Otherwise, it clearly states the offense, the defendant, the date and place of hearing, and is sworn to by the arresting officer. It would not be illegal, considering the exigencies of keeping court dockets, to have two numbers and a provision of cross reference between them, and since both numbers appear on this citation there is no reason to presume, in the absence of evidence to the contrary, that such was not in fact the case. The purpose of the requirement is to provide the person receiving the citation or his attorney a means of locating the docketed case, and there is no claim that the numbering mystified anybody concerned.
A more serious consideration is the failure to prove that the document headed 'Georgia Uniform Traffic Citation Summons, Accusation' is on a form developed by...
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