Nelson v. State, 50462
| Decision Date | 19 June 1975 |
| Docket Number | No. 1,No. 50462,50462,1 |
| Citation | 217 S.E.2d 450,135 Ga.App. 212 |
| Court | Georgia Court of Appeals |
| Parties | G. N. NELSON v. The STATE |
Thomas A. Roach, C. Michael Roach, Canton, for appellant.
Richard S. Gault, Solicitor, Canton, for appellee.
The question presented in this appeal is whether or not the results of a breath test are rendered inadmissible by the failure of the arresting officer to advise the appellant at the time of his arrest that he may have another test administered by a qualified person of his choosing in addition to the one administered by the arresting officer.
At the hearing of appellant's motion to suppress the results of the intoximater test, the two arresting officers testified that prior to administering the test, the appellant was advised only of his right to have either a blood test or a breath test, 'which one he preferred.' The state concedes that the appellant was not advised that he could have another qualified person of his own choosing administer a chemical test in addition to the intoximeter test administered at the direction of the arresting officer. Held:
Under the new Uniform Rules of the Road, Ga.L.1974, pp. 633, 672, 673 (Code Ann. § 68A-902.1), a chemical analysis of a person's breath shall be admissible in a criminal proceeding for the offense of driving under the influence of alcohol. The statute further provides: 'Where such a chemical test is made, the following provisions shall apply:
(Emphasis supplied.)
Under the former law, Ga.L.1968, p. 448, Sec. 1 (Code Ann. § 68-1625), repealed by Ga.L.1974, pp. 663, 691, 693, a person arrested for DUI did not have a right to have an additional test made at the time of his arrest. See Butts v. Dept. of Public Safety, 128 Ga.App. 490, 491(2), 197 S.E.2d 474. Under the present law, this right is established. The state's 'justifiable failure or inability to obtain the additional test' must logically be preceded by the...
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Williams v. State
..."Upon the trial of any civil or criminal action or proceeding . . . the following provisions shall apply." In Nelson v. State, 135 Ga.App. 212, 217 S.E.2d 450 (1975), this court held that "the advice of the right in this statute is clearly connected to and affects the admissibility of the t......
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Holcomb v. State, A95A0204
...by a qualified person of his own choosing, the results of the [S]tate-administered breath test are inadmissible. See Nelson v. State, 135 Ga.App. 212, 217 S.E.2d 450 (1975)." State v. Causey, 215 Ga.App. 85, 86, 449 S.E.2d 639, supra. Accord Moore v. State, 217 Ga.App. 536(1), 458 S.E.2d 47......
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State v. Johnston
...S.E.2d 20 (1979). The results of a breath test are not admissible over objection unless a proper foundation is laid. Nelson v. State, 135 Ga.App. 212, 217 S.E.2d 450 (1975); State v. Baker, 146 Ga.App. 608, 247 S.E.2d 160 (1978). The state failed to lay the foundation. The trial court, havi......
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Padidham v. State
...to State testing and their right to an independent test by a qualified professional. See OCGA § 40–5–67.1(b); Nelson v. State, 135 Ga.App. 212, 213, 217 S.E.2d 450 (1975) (right to independent testing must be made known to defendant at time of arrest in order that he may choose to challenge......
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Rodriguez v. State: Addressing Georgia's Implied Consent Requirements for Non-english-speaking Drivers - Adam Ferrell
...at 887, 350 S.E.2d at 812; see also Garrett v. Dep't of Public Safety, 237 Ga. 413, 413-14, 228 S.E.2d812,813 (1976); Nelson v. State, 135 Ga. App. 212, 214, 217 S.E.2d450,452 (1975). 45. Tosar, 180 Ga. App. at 887, 350 S.E.2d at 812 (quoting O.C.G.A. Sec. 40-5-55(b)). 46. Id. 47. Id.; see ......