State v. Griffin

• Court: Georgia Court of Appeals
• Writing for the Court: BIRDSONG
• Citation: State v. Griffin, 419 S.E.2d 528, 204 Ga.App. 459 (Ga. App. 1992)
• Decision Date: 04 June 1992
• Docket Number: No. A92A0751,A92A0751
• Parties: The STATE v. GRIFFIN.

Page 528

419 S.E.2d 528

204 Ga.App. 459

The STATE v. GRIFFIN.

No. A92A0751.

Court of Appeals of Georgia.

June 4, 1992.

Keith C. Martin, Sol., Leigh A. Moore, Asst. Sol., for appellant.

Jerry L. Patrick, Jr., Jonesboro, for appellee.

BIRDSONG, Presiding Judge.

The State directly appeals, pursuant to OCGA § 5-7-1(4), the ruling of the trial court granting appellee Kerry Jackson Griffin's motion to suppress a breath test result on the grounds appellee was denied the right to an independent test in violation of OCGA § 40-6-392(a)(3). State v. Strickman, 253 Ga. 287, 319 S.E.2d 864.

Appellee was stopped by the police. After submitting to a breath test, he was advised of his right to have an independent test and was given the choice of two hospitals, Henry General Hospital or Southern Regional Hospital. The evidence is in conflict whether appellee was advised that Henry General Hospital would only extract and not analyze the blood, but that Southern Regional, which charged more, would both extract and analyze blood. Appellee requested to use and was transported to Henry General where his blood was drawn and the sample handed to him. Appellee was returned to jail; his blood sample was taken from him, but returned the following day when he was released. Appellee makes an admission in judicio in his appellate brief of the fact that the blood sample was subsequently subjected to "a separate, analysis." Bannister v. State, 202 Ga.App. 762, 415 S.E.2d 912 and cases cited therein; Dover Realty v. Butts County, etc., 202 Ga.App. 787, 788(3), 415 S.E.2d 666; Department of Transp. v. Franco's Pizza, etc., 194 Ga.App. 437, 438, 390 S.E.2d 655; Fuller v. Fuller, 109 Ga.App. 386, 393-394(3), 136 S.E.2d 461; see generally Green, Ga. Law of Evid., Admissions, §§ 233 and 238; see e.g. Kentucky, etc., Co. v. Continental Cas. Co., 335 So.2d 649 (S.C.Ala.); Coco v. State, 62 So.2d 892, 896 (S.C.Fla.); Town of Boca Raton v. Raulerson, 108 Fla. 376, 146 So. 576, 577; State v. Morgan, 282 S.C. 409, 319 S.E.2d 335(7). Appellee makes no assertion and the record does not establish that, after being given his blood sample, he requested and was refused by the police to be taken to Southern Regional or to any other facility where his extracted blood sample could be promptly tested.

The trial court by granting the suppression motion tacitly ruled that the procedure employed by the police in this case did not meet the requirements of OCGA § 40-6-392(a)(3). Held:

1. Appellee argues police conduct precluded him from preserving chain of custody of his blood sample thereby preventing him from subsequently obtaining a test result that would be admissible in evidence. This police conduct he argues in effect deprived him of his right to an additional test.

A chemical analysis subsequently was performed of blood contained in the sample extracted from appellee. Appellee does not assert that a testing of his blood sample was not accurately performed due to improper handling or tampering by the police, or by any failure to have the sample analyzed the same night the blood was extracted, and the record as reconstructed establishes no such deficiency.

Appellee nevertheless asserts that police conduct prevented him from admitting the test results in evidence, as chain of custody could not be maintained because the sample was not retained in appellee's control. Suffice it to say the record does not affirmatively establish that chain of custody could not be established and we will not so speculate. We further find nothing in the record which would prevent a subpoena of the hospital and police personnel who handled the sample. Further, appellee is not prevented from testifying as to his own handling of the sample should he voluntarily elect to do so. Moreover, it would appear that the State would be estopped from contesting that the conduct of law enforcement officials was not adequate to establish maintenance of a proper chain of custody over the sample during the time when it was under the exclusive custody and control of law enforcement officials. OCGA § 24-4-27. This holding also is consistent with the well-established rule that a party cannot complain of matters caused by his own procedure or conduct. Littlefield v. State, 197 Ga.App. 343, 344(2), 398 S.E.2d 375; Tyson v. State, 184 Ga.App. 309, 310(1), 361 S.E.2d 386. (Additionally in the interest of judicial economy, the State might desire to stipulate as to the chain of custody, at least until the sample was placed in appellee's possession upon his release from custody.) In any event, it is not affirmatively established in the current record that, although appellee had no personal control over the sample during the time he was incarcerated, a chain of custody was not maintained properly by the law enforcement authorities until they returned the sample to appellee. Further, the record does not establish the blood sample either was substituted or tampered with while in the possession of the police, and such bare speculation is insufficient to preclude establishment of chain of custody. Williams v. State, 199 Ga.App. 122(2), 404 S.E.2d 296.

2. Appellee argues that a key issue is whether, under the existing circumstances, he was offered a qualified person of his own choosing to administer the additional test.

OCGA § 40-6-392(a)(3) provides: "The person tested may have a physician or a qualified technician, chemist, registered nurse, or other qualified person of his own choosing administer a chemical test or tests in addition to any administered at the direction of a law enforcement officer. 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 enforcement officer."

In State v. Tosar, 180 Ga.App. 885, 887, 350 S.E.2d 811, we held: "The State did prove that [the officer] read appellee his rights. The State is under no duty to show appellee's affirmative waiver of an additional chemical test. [Cits.] 'As we read this statute a duty is placed upon an officer who administers or causes to be administered a chemical test for alcoholic content in bodily fluids to advise the testee that he is entitled to an independent test of his own choosing. Once that duty is fulfilled by the officer, the statutory obligation is satisfied. Sworn testimony by the officer that such advice was given constitutes a prima facie showing of compliance.' " (Emphasis supplied.) As in Thompson v. State, 175 Ga.App. 645, 647, 334 S.E.2d 312, "[t]he facts show that defendant was afforded the opportunity to obtain an independent test of his blood, and that is all that is required." (Emphasis supplied.) Although the reconstructed record is sparse, it is adequate to establish that appellee was duly advised of his statutory rights within the meaning of OCGA § 40-6-392(a)(3) and (4). See generally Fowler v. State, 200 Ga.App. 505(2), 408 S.E.2d 449; State v. Tosar, supra, 180 Ga.App. at 887, 350 S.E.2d 811. In this regard, the...