State v. Button

• Court: Georgia Court of Appeals
• Writing for the Court: COOPER; SOGNIER
• Citation: State v. Button, 426 S.E.2d 194, 206 Ga.App. 673 (Ga. App. 1992)
• Decision Date: 19 November 1992
• Docket Number: No. A92A1151,A92A1151
• Parties: The STATE v. BUTTON.

Page 194

426 S.E.2d 194

206 Ga.App. 673

The STATE v. BUTTON.

No. A92A1151.

Court of Appeals of Georgia.

Nov. 19, 1992.

Reconsideration Denied Dec. 9, 1992.

Certiorari Denied Feb. 25, 1993.

Patrick H. Head, Sol., Victoria S. Aronow, Clifford L. Granger, Jr., Asst. Sols., for appellant.

Charles A. Mullinax, Stone Mountain, for appellee.

COOPER, Judge.

Appellee was arrested and charged with driving under the influence and other vehicular offenses. Prior to trial, he moved to suppress the results of an intoximeter test. The motion was granted and the State appeals.

After taking an intoximeter test administered by the State at the Cobb County Adult Detention Center, appellee invoked his right to an independent blood test. The arresting officer took appellee to Kennestone Hospital, a hospital chosen by the arresting officer because of its proximity to the detention center. Kennestone will draw an individual's blood upon request however, it does not perform blood alcohol tests as a matter of hospital policy. Accordingly, blood was drawn from appellee's arm and given to him, but he was unable to have it tested there or elsewhere. The officer did not take appellee anywhere else or ask him if he wanted to go anywhere else to have a test performed. Because appellee failed to receive his independent blood test, he moved to suppress the results of the State-administered intoximeter test. The trial court granted appellee's motion despite its finding that the officer did not know Kennestone would not do the blood test when he took appellee there. In its sole enumeration of error, the State contends that the trial court erred in suppressing the results of the intoximeter test.

"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. [Cit.]" State v. Buffington, 189 Ga.App. 800, 801, 377 S.E.2d 548 (1989). If an individual requests an independent test but is unable to obtain it, the results of the State-administered test cannot be used by the State as evidence against him unless the failure to obtain the test is justified. See, e.g., Turner v. State, 199 Ga.App. 466, 405 S.E.2d 296 (1991). "It is incumbent on the trial court to determine whether the failure or inability to obtain the additional test is justified. In making that determination, the trial court must decide if, under the totality of the circumstances, the officer made a reasonable effort to accommodate the accused who seeks an independent test." Buffington, supra 189 Ga.App. at 801-802, 377 S.E.2d 548. The State cites Harper v. State, 164 Ga.App. 230 (1), 296 S.E.2d 782 (1982) for the proposition that no duty on the part of the officer arises until the accused has made his own arrangements for an independent test. The State's reliance on Harper is misplaced because, to the extent its language suggested such a prerequisite to the officer's duty, the Harper approach has been supplanted by that of more recent cases which, recognizing the inherent difficulty in making one's own arrangements while in custody, instead simply treat whether the accused had the opportunity to make arrangements and whether he utilized that opportunity as circumstances to be considered in determining whether the officer acted reasonably to accommodate the accused's request under all the circumstances. See Buffington, supra; Love v. State, 195 Ga.App. 392(2), 393 S.E.2d 520 (1990).

In this case, the trial court determined that the officer's failure to take appellee to another hospital for a legally admissible independent blood test after discovering that Kennestone would not perform one...