Meiklejohn v. State, A06A1578.
| Decision Date | 02 October 2006 |
| Docket Number | No. A06A1578.,A06A1578. |
| Parties | MEIKLEJOHN v. The STATE. |
| Court | Georgia Court of Appeals |
George H. Law III, Whitmer & Law, Gainesville, for appellant.
Larry A. Baldwin II, Solicitor-General, Francis J. Moran III, Asst. Solicitor-General, for appellee.
Charles K. Meiklejohn was convicted of driving with a controlled substance in his blood in violation of OCGA § 40-6-391(a)(6) and failure to maintain lane. He appeals, arguing that the trial court erred by denying his motion to suppress the results of his blood test.
As is pertinent to this appeal, the following evidence was submitted or stipulated at the suppression hearing and trial: Officer Kenneth Smith testified Meiklejohn was involved in an automobile accident on March 18, 2002. While speaking to Meiklejohn, he noticed an odor of alcoholic beverage smell about his breath. Meiklejohn told Smith he had consumed one beer. Smith also observed that Meiklejohn had slurred speech, his face was flushed, he looked sleepy, his eyes were bloodshot and watery, and he was staggering and having a hard time keeping his balance. Meiklejohn failed the field sobriety tests Smith requested he perform, and Smith placed him under arrest for "DUI alcohol" and read him Georgia's implied consent notice. Pertinently, that notice provides that "Georgia law requires you to submit to state administered chemical tests of your blood, breath, urine, or other bodily substances for the purpose of determining if you are under the influence of alcohol or drugs." After reading the implied consent notice, Smith requested that Meiklejohn take a breath test, and he agreed.
After arriving at the detention center, Smith learned the Intoxilyzer 5000 was inoperable so he reread Meiklejohn the implied consent notice, again advising him that the purpose of the state's test would be to determine if he was under the influence of alcohol or drugs, and asked him to submit to a blood test instead. Meiklejohn agreed and was taken to a local hospital where his blood was drawn to be sent to the Georgia Bureau of Investigation Crime Lab for testing. The sample came back negative for alcohol but positive for cocaine. It was stipulated that the officer did not specifically request that Meiklejohn's blood be tested for drugs, but that the crime lab had a policy of doing additional testing for drugs or other substances when a DUI sample indicates 0.08 or less concentration for alcohol.
Meiklejohn first argues that the results of his blood test should have been excluded because the arresting officer did not request that the crime lab test Meiklejohn's blood for drugs. In support of his argument, Meiklejohn points to the language in OCGA § 40-5-55, which provides that the "test or tests shall be administered at the request of a law enforcement officer...." Relying on this language, Meiklejohn argues that the officer here did not request that his blood be tested for drugs as well as alcohol, and this failure rendered the test results inadmissible. We disagree. That sentence goes on to provide that testing shall be administered at the request of a law enforcement officer "having reasonable grounds to believe that the person has been driving or was in actual physical control of a moving motor vehicle upon the highways or elsewhere throughout this state in violation of Code Section 40-6-391." Thus, the import of that sentence is that the officer must have reasonable grounds to believe that the suspect has been driving under the influence before requesting that a chemical test be performed. There is nothing in that sentence that would exclude testing for drugs as well as alcohol as long as the suspect is properly advised, as was the situation here, pursuant to the implied consent notice that the tests were being administered for the purpose of determining whether he was under the influence of alcohol or drugs. Although OCGA § 40-5-55 goes on to provide that, subject to OCGA § 40-6-392, the officer must designate whether a breath, urine or blood test will be performed, that language means that the officer must advise the suspect of which test or tests he is requesting the suspect undergo. That was done here—the...
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