Sheffield v. State, 74969
| Citation | 361 S.E.2d 28,184 Ga.App. 141 |
| Decision Date | 09 September 1987 |
| Docket Number | No. 74969,74969 |
| Parties | SHEFFIELD v. The STATE. |
| Court | Georgia Court of Appeals |
H. Burton Crews, Jr., Jonesboro, for appellant.
John C. Carbo III, Sol., for appellee.
From a jury conviction and sentence for driving under the influence of alcohol, OCGA § 40-6-391(a)(2), defendant appeals with respect to matters of evidence. The first two enumerations complain of the admission of evidence that he refused the state-administered breath test. The third complains of the exclusion of evidence of the results of the administrative hearing. The fourth challenges the admission of evidence of defendant's prior driving record.
1. Defendant moved in limine for the exclusion from trial of evidence that he refused to submit to a state-administered test for alcohol in his blood which is required by OCGA § 40-5-55. He reasoned that it was inadmissible because the hearing he requested pursuant to subdivision (d) of that code section ended in dismissal of the Department of Public Safety's action to suspend his license for the alleged refusal. This dismissal, he contended, rendered any evidence of his refusal inadmissible because to admit it would deny due process and equal protection, would constitute double jeopardy, would constitute res judicata, and would preclude a fair and impartial trial, all as guaranteed by the United States and Georgia constitutions.
The court found that the Department's action was dismissed because the arresting officer did not appear for the administrative hearing, concluded that this did not make evidence of refusal inadmissible, denied the motion in limine, and permitted the evidence of refusal at trial. On appeal, defendant concentrates on the argument that the dismissal constituted res judicata on the issue of refusal so the state could not go behind the dismissal and offer the evidence of refusal.
OCGA § 40-6-392(c) provides that refusal to take the required test is admissible in any criminal trial. See also Wessels v. State, 169 Ga.App. 246, 312 S.E.2d 361 (1983). There was no determination at the administrative hearing that defendant did or did not refuse the test. The administrative sanction of license suspension was allayed for the reason that the officer who could testify about the matter was absent; this did not establish that defendant did not refuse the test. The dismissal was irrelevant to the question of refusal vel non and to the question of the admissibility of evidence of refusal. See in this connection Wyatt v. State, 179 Ga.App. 327(1), 346 S.E.2d 387 (1986), where refusal was deemed admissible despite the fact that the administrative action for license suspension was aborted by the officer's absence from the hearing.
Moreover, "[t]he proceedings to suspend the appellant's driving privileges in these cases are strictly civil or administrative in nature since no criminal consequences result from a finding adverse to the [licensee]." Cogdill v. Dept. of Public Safety, 135 Ga.App. 339, 340, 217 S.E.2d 502 (1975). Thus, their outcome does not control the admissibility in the criminal trial of evidence of refusal pursuant to OCGA § 40-6-392(c).
Since defendant had not "prevailed" on the issue of refusal in the res judicata sense which he urges, the denial of the motion in limine and the admission of refusal evidence did not subject him to unconstitutional prejudice, double jeopardy, or unfairness at trial as he conclusorily argues.
2. On objection, the court refused to allow defendant to give evidence of the results of the administrative action. This was not error because the dismissal of the action on account of the officer's absence was not probative of the issue of refusal or of the ultimate issue of intoxicated driving. Wyatt v. State, supra 179...
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