Sisson v. State

• Decision Date: 01 April 1998
• Docket Number: No. A98A0226.,A98A0226.
• Citation: 232 Ga. App. 61,499 S.E.2d 422
• Parties: SISSON v. The STATE.
• Court: Georgia Court of Appeals

499 S.E.2d 422

232 Ga. App. 61

SISSON v. The STATE.

No. A98A0226.

Court of Appeals of Georgia.

April 1, 1998.

Reconsideration Denied April 3, 1998.

J. Guy Sharpe, Jr., Marietta, for appellant.

Barry E. Morgan, Solicitor, Lawton W. Scott, Assistant Solicitor, for appellee. McMURRAY, Presiding Judge.

Defendant was tried before a jury and found guilty of driving under the influence of alcohol ("DUI") in violation of OCGA § 40-6-391(a)(1) (less safe driver) and no proof of insurance. The evidence at trial revealed that on the night in question, defendant quarreled with his girl friend, Pam Mullins. Defendant had come home "intoxicated enough for [the couple] to have an argument." When Mullins tried to call 911, defendant "jerked the phone out of [her] hands, threw it on the floor and broke it." From a pay phone, Mullins telephoned the police and told them she and defendant "are fighting and he's drunk, and he's driving a red Mazda truck and he was going to his mother's in Rockmart.... Going down Bankhead Highway, [Officer John H. Tumey of the Cobb County Police Department] picked up on a red Mazda pickup truck that was headed ... toward the direction of Rockmart.... [Officer Tumey observed] an older male driving [and] a younger male in the passenger's seat." Officer Tumey initiated a traffic stop and "asked the driver for his license and insurance card." Defendant "kept fumbling around for about a minute trying to give [the officer] his license.... He [defendant] was going through his wallet, then going through his dash, then flipping through the truck seat, then back to his wallet.... [Defendant finally located his documents] in his wallet." Officer Tumey "could smell an odor of an alcoholic beverage about [defendant].... [Defendant] eventually gave [Officer Tumey] his license [but] never could produce an insurance card.... When [defendant] stepped out of his truck, he kind of staggered and swayed and he grabbed the side of his truck to hold himself up.... [Defendant] continued to walk down the bed side of the truck using the truck to hold his balance to hold him up." An alco-sensor tested positive for alcohol. "After [Officer Tumey] administer[ed] that test, [defendant] made a comment... that he did have a few beers...." Defendant was unable to touch the tip of his nose with his right and left index fingers. Defendant informed Officer Tumey "that he did not know his ABCs to do the ABC test[, so they] went ahead and passed that test on by.... [When] asked ... for the date and the time[, defendant got the day of the week correct but] was off about 52 minutes ..." as to the lateness of the hour. Defendant's "eyes were bloodshot and watery.... [H]is breath was strong of an alcoholic beverage, and his speech was slurred."

At that point, defendant was placed under arrest and read his implied consent warnings. Mullins came to the scene and took custody of defendant's 14-year-old son. When Officer Tumey attempted to administer a breath test at the precinct, he admonished defendant "to take a deep breath, seal his lips around the mouthpiece and continue to blow approximately four to eight seconds until the machine quits giving a tone.... [But defendant only] blew one to two seconds, just a quick little blow. [Officer Tumey then] instructed [defendant] that he need[ed] to blow until [the officer told] him to stop.... [Defendant] then again blew... two seconds, just kind of a quick breath. That was it." They "did this approximately four times, and all four times he [defendant] would just give a quick, little short breath...." Officer Tumey "offered [defendant] the test again for his benefit of the doubt [but defendant] refused to take the test again...." Officer Tumey again read defendant his implied consent warnings and "offered him a test of his blood for his benefit of the doubt. He refused that test as well." Based on Officer Tumey's training and experience, and his observation of defendant's mannerisms and demeanor, he was of the opinion that defendant "was a less safe driver...." Deputy Earl Head of the Carroll County Sheriff's Office and formerly with the traffic unit of the City of Rockmart Police Department related the circumstances of defendant's July 16, 1994 arrest and subsequent conviction for "DUI [in the] Recorders Court—Rockmart[, Polk County, Georgia]." Defendant's blood alcohol concentration was "13 grams [sic] at 16:22 hours."

The jury found defendant guilty as charged on each count. Defendant's direct appeal to the Supreme Court of Georgia was determined to "involve the application and not the construction and interpretation of the Georgia Constitution, [and so] this case [was] transferred to the Court of Appeals." Held:

1. Defendant first contends he was denied equal protection under Art. I, Sec. I, Par. II of the 1983 Georgia Constitution, arguing that "[p]ursuant to OCGA § 24-9-103 [(b)(1) and (2)], hearing impaired persons are given preferential treatment [because] the law provides that no evidence can be obtained from hearing impaired persons, during the first hour following an arrest, without the presence of an interpreter." Since defendant is not hearing impaired, he claims he is unfairly subject to roadside questioning about the state of his sobriety during "a critical period during which time people arrested for DUI may reduce the quantity of alcohol in the body to a level below the DUI threshold." The trial court concluded "the State can and does make exceptions to compensate for people who are suffering under handicaps...."

(a) "There are three standards generally accepted for determining constitutionality under the Equal Protection Provisions of both the U.S. and [Georgia] Constitutions: (1) The rational relationship test; (2) The intermediate level of scrutiny; and (3) The strict judicial scrutiny standard." (Citation and punctuation omitted.) McDaniel v. Thomas, 248 Ga. 632, 638(III), 285 S.E.2d 156. DUI suspects who are not themselves hearing impaired do not constitute a suspect classification nor do they implicate a fundamental right for equal protection analysis such as to implicate strict scrutiny. Nor does such classification invoke the intermediate scrutiny of gender-based classifications. Consequently, the standard of review is the rational basis standard.

(b) "Under this analysis, ... statutory classifications are presumed valid and will survive an equal protection challenge if the classification bears a rational relationship to a legitimate government interest. McDaniel, 248 Ga. at 638-639 [285 S.E.2d 156, supra]. The claimant must establish that he is similarly situated to members of the class who are treated differently from him. Next, the claimant must establish that there is no rational basis for such different treatment. [Cit.]" Henry v. State, 263 Ga. 417, 418, 434 S.E.2d 469.

In our view, defendant cannot meet either prong of this test. He conceded he "has perfectly good hearing," and so he is not similarly situated to hearing-impaired DUI suspects who, in the absence of a translator, are not interrogated or read their implied consent warnings for up to one hour. Secondly, "[t]he intent of OCGA § 24-9-101 et seq. is to provide qualified interpreters to convey to hearing impaired [drivers] their implied consent warnings and rights before any questioning.... OCGA § 24-9-103(b)." Allen v. State, 218 Ga.App. 844, 846(1), 847, 463 S.E.2d 522. In the case sub judice, defendant failed to meet his burden to show the procedure whereby criminal suspects who are hearing impaired are not interrogated for up to one hour except in the presence of a translator is arbitrary or otherwise not rationally related to a legitimate state interest. See Gaines v. State, 260 Ga. 267, 268, 392 S.E.2d 524.

2. Next, defendant contends he was denied the right to confront his accuser, as guaranteed by the Sixth Amendment to the U.S. Constitution and Art. I, Sec. I, Par. XIV of the 1983 Georgia Constitution. In this regard, he complains of the admission into evidence of State's Exhibit 1, which is the Georgia Bureau of Investigation Certificate of Inspection for "breath testing instrument, [serial number] XX-XXXXXX." Attached to this certificate are printouts purporting to be the test results from the inspection as performed by Trooper R.M. Webb, the signatory to the certificate. Defendant argues "the test results should not have been tendered in the trial as evidence along with the certificate required by OCGA § 40-6-392(f)."

At trial, defendant interposed objections based on hearsay, denial of cross-examination of Trooper Webb, and best evidence. Officer Tumey was then permitted to offer foundation evidence. He testified he knew R.M. Webb is a state trooper; that Trooper Webb is the implied consent area supervisor whose duty it is to "go around to all of our Intox machines and to inspect them and calibrate them and make sure they are working properly"; that "Trooper Webb run[s] a test on the machine when he inspects it quarterly[; and that] he [ran] a test on the machine when he inspected it on January 2nd, 1996." Officer Tumey identified the attachments to the inspection certificate as "[a] printout of the machine and the test that Trooper Webb ran on it."

In our view, this was an adequate foundation to admit the printouts as business records under OCGA § 24-3-14(b), in that it was in the regular course of Trooper Webb's business to perform such a test, and these printouts were the result of one of those tests conducted in the regular course of Trooper Webb's duties. Consequently, "there [was] no violation of defendant's right of confrontation. [Cit.]" Stewart v. State, 246 Ga. 70, 73(3), 74, n. 2, 268 S.E.2d 906.

3. In the third enumeration, defendant contends the trial court erred in admitting evidence of a prior incident of driving under the influence of alcohol. Relying on Old Chief v. United States, 519 U.S. 172, 117 S.Ct. 644, 136 L.Ed.2d 574,¹ h...