McFarland v. State

• Decision Date: 30 September 1993
• Docket Number: No. A93A1786,A93A1786
• Citation: McFarland v. State, 436 S.E.2d 541, 210 Ga.App. 426 (Ga. App. 1993)
• Court: Georgia Court of Appeals
• Parties: McFARLAND v. The STATE.

Page 541

436 S.E.2d 541

210 Ga.App. 426

McFARLAND v. The STATE.

No. A93A1786.

Court of Appeals of Georgia.

Sept. 30, 1993.

Jason R. Hasty, Marietta, for appellant.

Garry T. Moss, Dist. Atty., Cecelia V. Moutoux, Asst. Dist. Atty., for appellee.

McMURRAY, Presiding Judge.

Defendant McFarland appeals his conviction of the offenses of driving under the influence and of habitual violator. Held:

1. Defendant contends the trial court erred in admitting into evidence a photocopy of two return receipts for certified mail. The only issue both preserved by objection at trial and argued on appeal in support of this enumeration of error maintains that the admission of this evidence was a violation of the best evidence rule. However, pursuant to OCGA § 40-5-2(f)(1), since this exhibit was a certified copy of a record of the Georgia Department of Public Safety and there was no challenge to the certification, the "best evidence" objection has no merit. Henson v. State, 168 Ga.App. 210, 213(3), 308 S.E.2d 555. See also Gill v. Bowman, 201 Ga.App. 308, 410 S.E.2d 780; Arnold v. State, 189 Ga.App. 900, 901(1), 377 S.E.2d 918; Smith v. State, 187 Ga.App. 322(1), 370 S.E.2d 185.

2. The three remaining enumerations of error question the sufficiency of the evidence to authorize defendant's conviction. The evidence viewed in the light most favorable to upholding the jury's verdict shows that a vehicle driven by defendant was stopped after police received a citizen's report that the driver was intoxicated. See State v. McFarland, 201 Ga.App. 495, 411 S.E.2d 314. When defendant got out of the car, he smelled of alcohol, his face was red and flushed, his speech was slurred, and he staggered and braced himself against the car. Several empty and full beer cans were found in the car. After defendant failed a number of field sobriety tests, defendant was arrested and asked to take a breath test to determine the alcohol content of his blood. Defendant was given the implied consent warning, but refused to take the breath test and demanded a blood test. Defendant was driven to a hospital in order that a blood sample could be taken for testing. However, upon arrival at the hospital, defendant became belligerent to an extent such that the officers did not believe that it was safe to remove the handcuffs from defendant, as was necessary in order to draw blood for a test, so no blood test was done. Based on his experience and defendant's appearance, the arresting officer opined that defendant was under the influence of alcohol to an extent that he was a less safe driver. This evidence was sufficient to authorize defendant's conviction beyond a reasonable doubt of driving under the influence. Veal v. State, 205 Ga.App. 564, 422 S.E.2d 920; Duncan v. State, 205 Ga.App. 181, 182(2), 421 S.E.2d 336; Shults v. State, 195 Ga.App. 525, 528(4), 394 S.E.2d 573.

In regard to the habitual violator charge, we note that upon first being stopped, defendant stated to the officers that he was a "HV" or habitual violator. The State also showed proper notice to defendant of his habitual violator status, in that the custodian of the records of the Georgia Department of Public Safety testified that the records of that department showed...