State v. Buffington, 77123

• Court: Georgia Court of Appeals
• Writing for the Court: BENHAM; McMURRAY, P.J., and POPE
• Citation: State v. Buffington, 377 S.E.2d 548, 189 Ga.App. 800 (Ga. App. 1989)
• Decision Date: 09 January 1989
• Docket Number: No. 77123,77123
• Parties: The STATE v. BUFFINGTON.

Page 548

377 S.E.2d 548

189 Ga.App. 800

The STATE v. BUFFINGTON.

No. 77123.

Court of Appeals of Georgia.

Jan. 9, 1989.

Lydia S. Jackson, Sol., Raymond E. George, Asst. Sol., for appellant.

G. Hammond Law III, Gainesville, for appellee.

BENHAM, Judge.

Appellee was arrested for driving under the influence of alcohol near Gainesville, Georgia, on New Year's Eve. He was given an intoximeter test, which produced a reading of .27 grams percent. Appellee filed a motion in limine to suppress the test results, contending that he was not given ample opportunity to take an independent blood test in accordance with OCGA § 40-6-392(a)(3). The trial court granted appellee's motion, and the State appeals.

The testimony at the suppression hearing showed that after the completion of the State's intoximeter test, appellee asked for an additional blood alcohol test. When the question of cost came up, the arresting officer had someone at the county jail call the Northeast Georgia Medical Center to find out what the cost of the test would be. One of the jailers reported that it was "somewhere around in the mid-twenties." The officer asked appellee if he had the money and he said he had "$20-something" so the officer took appellee to the medical center emergency room and told the clerk that appellee wanted an additional blood test at appellee's expense. Appellee's funds were then counted and it was discovered that he had $22; the cost of the test was a few dollars more than that, so the officer told appellee that he did not have enough money to take the test. He would not let appellee talk to the clerk personally to negotiate another method of payment for the blood test, even though appellee had his checkbook with him. Appellee had done business with the hospital before, and he had an aunt who was a hospital employee. He also had relatives who lived within five minutes travel time of the hospital, but the officer would not allow him to contact any of them for financial assistance while he was there. The officer took appellee back to the patrol car and returned him to jail without his having taken the blood test he requested.

The trial court granted appellee's motion, concluding that under the circumstances appellee was not given an opportunity to have an independent test. We agree. OCGA § 40-6-392(a)(3) allows one accused of driving under the influence of alcoholic beverages the right to have a chemical analysis of his blood and urine by a qualified person of his own choosing, and there is a corresponding duty on the part of law enforcement officers not to refuse or fail to allow the accused to exercise that right. Puett v. State, 147 Ga.App. 300, 248 S.E.2d 560 (1978). 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. Grizzle v. State, 153 Ga.App. 364(2), 265 S.E.2d 324 (1980). The statute also states that "the 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...