State v. McKenna, A90A2068
| Decision Date | 04 February 1991 |
| Docket Number | No. A90A2068,A90A2068 |
| Parties | The STATE v. McKENNA. |
| Court | Georgia Court of Appeals |
Gerald N. Blaney, Jr., Sol., Jessica R. Towne, Asst. Sol., for appellant.
Harrison & Harrison, Eastman, G. Hughel Harrison, Lawrenceville, for appellee.
After appellee was charged with driving under the influence, he filed a pre-trial motion to exclude from evidence both a printout showing the results of his Intoximeter test and any testimony with regard thereto. The trial court granted appellee's motion, based upon its determination that the printout had been materially altered. The order was certified for immediate review and the State appeals from the trial court's evidentiary ruling pursuant to this court's grant of its application for interlocutory appeal.
Although this court granted the State's application for an interlocutory appeal and appellee has not filed a motion to dismiss, Flowers v. State, 155 Ga.App. 256, 257, 270 S.E.2d 695 (1980).
The authority of the State to appeal an adverse ruling in a criminal case is controlled by statute. "An appeal may be taken by and on behalf of the State of Georgia ... in criminal cases in the following instances: ... From an order, decision, or judgment sustaining a motion to suppress evidence illegally seized in the case of motions made and ruled upon prior to the impaneling of a jury." (Emphasis supplied.) OCGA § 5-7-1(4). This statute is not so limited in scope as to authorize the State to appeal only from the grant of a pre-trial motion to suppress under OCGA § 17-5-30. If the defendant in a criminal case files any pre-trial motion to exclude evidence on the ground that it was obtained in violation of law, the grant of such a motion may be appealed by the State. State v. Brown, 185 Ga.App. 701, 365 S.E.2d 865 (1988). See also State v. Strickman, 253 Ga. 287, 288, 319 S.E.2d 864 (1984) ().
In the instant case, however, appellee's pre-trial motion did not seek the exclusion of any evidence on the ground that it had been obtained in violation of law. The exclusion of the test results was based upon the trial court's finding of a material alteration thereof. Accordingly, OCGA § 5-7-1(4) is not authority for the State to bring this appeal. State v. Brown, supra, 185 Ga.App. at 702, 365 S.E.2d 865. See also State v. Thomas, 176...
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