Sheehan v. State

• Court: Georgia Court of Appeals
• Writing for the Court: SMITH, Chief.
• Citation: Sheehan v. State, 267 Ga.App. 152, 598 S.E.2d 873 (Ga. App. 2004)
• Decision Date: 21 April 2004
• Docket Number: No. A04A0264.,A04A0264.
• Parties: SHEEHAN v. The STATE.

267 Ga. App. 152

598 S.E.2d 873

267 Ga.App. 152

SHEEHAN v. The STATE.

No. A04A0264.

Court of Appeals of Georgia.

April 21, 2004.

Virgil L. Brown & Associates, Larkin M. Lee, Zebulon, for Appellant.

Griffin E. Howell III, Solicitor-General, Griffin, for Appellee.

SMITH, Chief Judge.

Following a bench trial on stipulated facts, Andrew Sheehan was convicted of DUI and driving with a suspended license. Sheehan appeals, contending that he was denied an independent blood test and that the trial court therefore erred in denying his motion to suppress the results of his State-administered breath test.

Finding no error, we affirm.

During the hearing on Sheehan's motion to suppress, Officer Brad Milstein of the Griffin Police Department testified that he made a traffic stop on a vehicle driven by Sheehan at approximately 1:15 a.m. After observing Sheehan's demeanor, detecting the odor of alcohol about Sheehan, and performing field sobriety tests on Sheehan, Milstein placed him under arrest for DUI.¹ Milstein read Sheehan his implied consent rights, and Sheehan agreed to a State-administered breath test. Milstein transported Sheehan to the Griffin Police Department and administered the test, after which Sheehan requested a blood test. Milstein "told him that was fine" and asked Sheehan if "Spalding Regional was alright, and he said yes."

Milstein took Sheehan to Spalding Regional Hospital, and he testified that when they "went in the waiting room, the receptionist advised us that it was going to be $125 cash." Sheehan told Milstein that he had a checkbook but not cash or an ATM card, and the receptionist informed them that she would not "accept checks." Milstein testified that Sheehan told him that "he had the money at his shop" and that, based on this, he planned to drive Sheehan to his place of business so that he could obtain the money for the test. Before they left the hospital parking lot, however, Sheehan told Milstein that he did not have cash at his shop to pay for the test but that he had a checkbook there and wanted to get a check cashed. Milstein testified that at that point he "advised him that there was no place at two o'clock in the morning that was going to cash his check. And at that point, he said he had no other way to get any money. And ... I went ahead and transported him to the Spalding County Jail."

Terri Watts, an employee in the business office at Spalding Regional Hospital, testified that the hospital has a policy of accepting personal checks for blood tests. She also acknowledged, however, that the business office is an off-site facility, open from 8:00 a.m. until 5:00 p.m., and that she had no direct knowledge of "what goes on at the hospital." She also agreed that she did not know whether a cashier was present at 2:00 a.m. The trial court denied Sheehan's motion to suppress the results of the State-administered test, stating, "I think the officers did as much as they could do. It's not incumbent on them to question personnel as to policy when they're told what it is." On appeal, Sheehan argues that Milstein failed to make a reasonable effort to accommodate his request for an independent blood test and that the results of his State-administered test consequently should have been suppressed.

Under OCGA § 40-6-392(a)(3), a person accused of DUI has "the right to have a chemical analysis of his blood and urine by a qualified person of his own choosing." Cadden v. State, 213 Ga.App. 291, 292, 444 S.E.2d 383 (1994). Law enforcement officers have a "corresponding duty ... not to refuse or fail to allow the accused to exercise that right. While it is not the officer's duty to insure the performance of an independent test, he cannot prevent a defendant from exercising his right to such a test." Id. OCGA § 40-6-392(a)(3) further provides that "[t]he justifiable failure or inability to obtain an additional test shall not preclude the admission of evidence relating to the test or tests taken at the direction of a law enforcement officer." In deciding whether the failure to obtain...