Schlanger v. State

• Decision Date: 21 March 2008
• Docket Number: No. A07A1866.,A07A1866.
• Parties: SCHLANGER v. The STATE.
• Court: Georgia Court of Appeals

290 Ga. App. 407

659 S.E.2d 823

290 Ga.App. 407

SCHLANGER v. The STATE.

No. A07A1866.

Court of Appeals of Georgia.

March 21, 2008.

John W. Mrosek, Fayetteville, for Appellant.

Barry E. Morgan, Solicitor-General, Rebecca S. Walton-McFalls, Asst. Solicitor-General, for Appellee.

BERNES, Judge.

Following a jury trial, Herbert P. Schlanger appeals his convictions for DUI,¹ reckless driving, and failure to maintain a lane. Schlanger contends that the trial court erred in denying his motion to suppress the results of his state-administered blood test; in admitting the results of the blood test over his chain of custody objection; in prohibiting Schlanger's expert from testifying on an issue related to the reliability of the blood test; in curtailing Schlanger's cross-examination of the arresting officer; in giving the jury an erroneous DUI charge; and in allowing the arresting officer to testify that Schlanger requested and received an independent blood test. Finally, Schlanger challenges the sufficiency of the evidence offered in support of his convictions. For the reasons set forth below, we vacate Schlanger's sentence and remand this case to the trial court for resentencing in accordance with this opinion. We affirm the judgment in all other aspects.

The evidence shows that on the evening in question, a Cobb County police officer responded to the scene of a single-car accident, where he encountered Schlanger standing outside of his overturned vehicle. The weather was clear, the traffic was light, and the off-ramp was dry at the time of the accident. Schlanger had nonetheless left the roadway while traveling on the off-ramp of the interstate and his vehicle had landed in the gore area off of the ramp.

The responding officer immediately noticed an odor of alcohol emanating from Schlanger's person. He further observed that Schlanger's speech was slurred, his eyes were bloodshot and watery, and he was unsteady on his feet. Schlanger admitted to the officer that he had consumed four liquor drinks in the three hours preceding the accident, although he claimed that the incident was a result of him having been cut-off by another driver. The officer saw no indication that another vehicle had been involved and there were no witnesses to the accident. Schlanger refused medical treatment from the responding emergency medical personnel.

No field sobriety tests were conducted, but based upon the officer's experience and observations in conjunction with Schlanger's admission that he had been drinking, the officer concluded that Schlanger was under the influence of alcohol to the extent that it was less safe for him to drive and arrested him. Schlanger was read the implied consent notice and agreed to take a state-administered blood test.

Schlanger was taken to a local hospital, where he gave a blood sample. His blood tested positive for alcohol with a result of 0.136 gram percent. Schlanger also requested and received an independent blood test on the night of the accident, although he did not admit the results of the independent test at trial.

1. Schlanger contends that the arresting officer lacked probable cause for his arrest and that the results of his blood test should have therefore been suppressed. Specifically, Schlanger argues that the odor of alcohol emanating from his person, his slurred speech, his bloodshot and watery eyes, his unsteadiness on his feet, and his admission that he had been drinking, were insufficient to establish probable cause for his arrest because he may have suffered a head injury in the accident. He argues that some of the physical manifestations of intoxication observed by the officer could have been caused by this alleged head injury.

The test of probable cause requires merely a probability — less than a certainty but more than a mere suspicion or possibility. To arrest a suspect for driving under the influence, an officer need only have knowledge or reasonably trustworthy information that the suspect was actually in physical control of a moving vehicle, while under the influence of alcohol to a degree which renders him incapable of driving safely. And we have previously found that, even in the absence of the field sobriety tests, the officer's observation that a suspect had bloodshot, watery eyes and exuded an odor of alcohol was sufficient to show probable cause to arrest him for driving under the influence.

(Punctuation and footnotes omitted; emphasis supplied.) State v. Sledge, 264 Ga.App. 612, 614, 591 S.E.2d 479 (2003). See also Kellogg v. State, 288 Ga.App. 265, 269(2), 653 S.E.2d 841 (2007) (defendant's bloodshot and watery eyes, smell of alcohol, admission to drinking, and positive alco-sensor test gave officer probable cause).

Schlanger's reliance on State v. Gray, 267 Ga.App. 753, 600 S.E.2d 626 (2004), is misplaced. There, the trial court found as a matter of fact that the arresting officer's testimony lacked credibility and concluded that the defendant's dazed and confused actions were the result of the accident — not intoxication — and thus granted the defendant's motion to suppress. Id. at 756(2), 600 S.E.2d 626. In that case, as in this case, our standard of review required us to defer to the trial court's findings of fact and witness credibility. Id. at 753-754(1), 600 S.E.2d 626.

An appellate court reviewing a trial court's order on a motion to suppress evidence must accept the trial court's decisions with regard to questions of fact and credibility unless they are clearly erroneous. The reviewing court must also construe the evidence most favorable to the upholding of the trial court's findings and judgment and must not disturb the findings of the trial judge unless no evidence exists to support them.

(Citation omitted.) Parker v. State, 233 Ga. App. 616, 617, 504 S.E.2d 774 (1998).

Here, the evidence was more than sufficient to support the trial court's determination that Schlanger's conduct and demeanor resulted from intoxication and was not solely a consequence of, but indeed may have been the cause of, his accident. See Kellogg, 288 Ga.App. at 269-270(2), 653 S.E.2d 841; Slayton v. State, 281 Ga.App. 650, 653(1), 637 S.E.2d 67 (2006); Jones v. State, 273 Ga.App. 192, 194-195(1)(c), 614 S.E.2d 820 (2005).

2. Schlanger also contends the trial court erred in admitting the blood test results over his objection that the state had failed to sufficiently establish the chain of custody of his blood sample. Schlanger's claim lacks merit.

To show a chain of custody adequate to preserve the identity of fungible evidence, the [s]tate must prove with reasonable certainty that the evidence is the same as that seized and that there has been no tampering or substitution. The [s]tate is not required to foreclose every possibility of tampering; it need only show reasonable assurance of the identity of the evidence.

(Footnote omitted.) Stringer v. State, 285 Ga.App. 599, 603(2), 647 S.E.2d 310 (2007). We review a trial court's finding that the state adequately established chain of custody for an abuse of discretion. Id.

At trial, the technician who drew Schlanger's blood on behalf of the state testified that when taking the blood sample, she used instruments from a sealed kit designed specifically for that purpose. After drawing the blood, the technician labeled the blood tubes with her initials and the date, and sealed the tubes. The tubes, which had not expired, contained the preservatives sodium fluoride and potassium oxalate. She placed the sealed tubes into a sealed bag and placed the bag into a box which she again sealed with her initials and dated. She then handed the box, which was addressed to the Georgia Bureau of Investigation (GBI), to the arresting officer.

The arresting officer testified that he took the box from the technician and kept it in his possession until he placed it into the U.S. mail the following day. The GBI forensic toxicologist who tested Schlanger's blood sample testified to the GBI's handling of the evidence. Upon the GBI's receipt of the box containing Schlanger's blood sample, it was inspected to ensure that it had been properly sealed. The box was then opened and inspected to confirm that the tubes had been properly labeled and sealed, had not leaked, and showed no signs of tampering.

The test tubes containing the blood sample were then placed into a different bag which was sealed, labeled, photographed, and given a unique bar code and case number for computer identification. The bag containing the sample was then placed into a refrigerated storage unit until it was retrieved by the toxicologist for testing. The toxicologist explained that access to the storage unit is very limited and requires any individual gaining access to use a pass containing a bar code and an individual pin number prior to gaining entry to the area. When the toxicologist retrieved the sample for testing, she confirmed that the tubes were not damaged and their seals were intact.

This evidence was sufficient to meet the state's burden of proving reasonable assurance of the identity of the sample. Stringer, 285 Ga.App. at 604-605(2), 647 S.E.2d 310. It follows that the trial court did not abuse its discretion in admitting the challenged evidence.

Schlanger nonetheless argues that the condition of the blood sample evidence was questionable because it took nine days from the day it was mailed to be received by the GBI. But, once it has been established that the blood sample is the same as that which was seized, any argument as to the purity of the sample goes to its weight, not admissibility. Smith v. City of East Point, 189 Ga.App. 454, 456(3), 376 S.E.2d 215 (1988). See also Maldonado v. State, 268 Ga.App. 691(1), 603 S.E.2d 58 (2004); Campbell v. State, 136 Ga.App. 338, 341(3), 221 S.E.2d 212 (1975) ("In light of the sealed nature of the container and the lack of any evidence of tampering, we are convinced that the chain of custody is unbroken up to...