Thompson v. State

• Court: Georgia Court of Appeals
• Writing for the Court: BEASLEY; DEEN, P.J., and POPE
• Citation: Thompson v. State, 334 S.E.2d 312, 175 Ga.App. 645 (Ga. App. 1985)
• Decision Date: 09 July 1985
• Docket Number: No. 70071,70071
• Parties: THOMPSON v. The STATE.

Page 312

334 S.E.2d 312

175 Ga.App. 645

THOMPSON v. The STATE.

No. 70071.

Court of Appeals of Georgia.

July 9, 1985.

Rehearing Denied July 31, 1985.

Certiorari Denied Sept. 5, 1985.

Darryl R. Vandeford, Lawrenceville, for appellant.

Rafe Banks III, Dist. Atty., Wallace W. Rogers, Jr., Garry T. Moss, Asst. Dist. Attys., for appellee.

BEASLEY, Judge.

Thompson appeals from the conviction and sentence in May 1984 for aggravated assault and driving under the influence of alcohol on September 23, 1983. His motion for new trial on the general grounds was denied May 16.

The evidence was in sharp conflict. From the State's witness came the following account. Jerry Heard, an off-duty police officer with the City of Cumming, was driving his wife's station wagon accompanied by his wife and four children. As they approached the intersection of Georgia Highways 20 and 400 outside the city limits of Cumming, the defendant, who was exiting Georgia 400 and entering Georgia 20, pulled his truck in front of the Heard vehicle. Heard swerved to avoid a collision, blew his horn, and passed defendant, who then drove his truck in such close proximity to the station wagon that it was forced off the road and onto the median. The truck stopped in front of the station wagon, blocking its way. Both parties exited their vehicles and started toward one another. Heard held his police badge high in his left hand and his police revolver in his right hand. Despite Heard's announcement that he was a police officer, defendant advanced and struck the badge from his hand. Heard tossed his revolver to his wife and simultaneously the defendant either struck or shoved Heard causing him to fall. Heard and the defendant fought and struggled on the ground for some time. At one point Heard's wife struck defendant on the head with a flashlight but he continued the conflict. Finally, bystanders subdued defendant and Heard's wife handcuffed him. About this time a Forsyth County Deputy Sheriff arrived, followed by other police officers, and defendant was taken to jail.

An auto-intoximeter test administered at the sheriff's office registered .21. Defendant demanded a blood test, was told the hospital's charge would be $65, and said he had that amount. As they were leaving for the hospital, defendant spied Heard and attempted another altercation. When they got to the hospital and the receptionist repeated the cost defendant stated he did not have $65 in cash and demanded that the county pay for the test. The officers took defendant back to jail, where he was released on bond several hours later.

1. (a) Appellant contends (fifth enumeration of error) that the trial court erred in overruling his motion for directed verdict. "The statutory standard for application by a trial court to decide a motion for a directed verdict of acquittal is '[w]here there is no conflict in the evidence and the evidence with all reasonable deductions and inferences therefrom shall demand a verdict of acquittal" the court may so direct a verdict. Maddox v. State, 170 Ga.App. 498, 499(1), 317 S.E.2d 617 (1984); OCGA § 17-9-1(a). Even defendant admits that this is the law, quoting Merino v. State, 230 Ga. 604, 605(1), 198 S.E.2d 311 (1973). It is not error to refuse to direct a verdict when, "viewing the evidence in the light most favorable to the prosecution, a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Wright v. State, 253 Ga. 1, 3(1), 316 S.E.2d 445 (1984); Lee v. State, 247 Ga. 411, 412(6), 276 S.E.2d 590 (1981).

Applying these principles to the evidence, there was no error in denying defendant's motion for a directed verdict.

(b) Defendant contends in addition that the State failed to prove venue. At the time this issue was raised at trial, the State, while not admitting the element had not been established, moved to reopen its case. The court allowed it over defendant's objection, but reprimanded the State. Defendant did not contest the fact that the incident occurred in Forsyth County.

It is within the trial court's discretionary power to reopen a case and permit the introduction of further evidence even though the testimony is not in rebuttal of evidence offered by defendant. Britten v. State, 221 Ga. 97, 101(4), 143 S.E.2d 176 (1965); Davis v. State, 127 Ga.App. 76, 80(3), 192 S.E.2d 538 (1972); Lemons v. State, 167 Ga.App. 863, 864(3), 307 S.E.2d 747 (1983). No abuse is shown, and venue was unequivocally shown.

2. (a) Appellant challenges denial of his motion to suppress the intoximeter test results. a) Several bases are urged, first, that his warrantless arrest was illegal because he was arrested by a non-officer before the deputy sheriff arrived and, if not then under arrest, his arrest by the deputy sheriff was for a misdemeanor (DUI) not committed in the arresting officer's presence. If we consider off-duty police officer Heard as a private person at the time of the incident, as defendant is want to do, his detention of defendant, aided by his wife's handcuffing of defendant, constituted a valid arrest. As quoted in appellant's brief, the law authorized a private person to arrest if the offense is committed in his presence. OCGA § 17-4-60. All of the activities for which defendant was tried were in Heard's presence; they actually involved him. He then merely turned the matter over to the deputy sheriff when he arrived, as required by OCGA § 17-4-61(a), and the latter formally arrested defendant on the initial charge of driving under the influence. Although OCGA § 17-4-62 requires the person effecting a warrantless arrest to take him to a judicial officer "without delay" so that the basis for continuing the detention of the arrestee may be scrutinized, and if this is not done the arrestee must be released within forty-eight hours, appellant's complaint here is meritless. He was released within five or six hours, and in at least part of that period, the law enforcement officers were occupied with intoxication-testing efforts as authorized by law. OCGA §§ 40-5-55(a); 40-6-392.

(b) As to appellant's second assertion, this court has already determined that the fact that rules have been promulgated by the Department of Public Safety rather than the Division of Forensic Sciences of the Georgia Bureau of Investigation does not serve to invalidate the rules regarding the implied consent law. State v. Holton, 173 Ga.App. 241, 326 S.E.2d 235 (1985).

(c) Failure of the deputy sheriff to record on the uniform citation certain information pursuant to Department of Public Safety Rule 570-9-0.12-.06 did not make the test results inadmissible. Obviously, the purpose of the rules of recordation of the Department of Public Safety are administrative, to facilitate the processing of the case and provide easy access to this information needed by those involved, including defendant. Hence, he was given that information elsewise, in several forms, so he has no excuse to complain. While non-compliance might subject the officer to internal disapproval, and corrective measures, defendant shows no harm to himself by the omission. Burnette v. State, 165 Ga.App. 768, 302 S.E.2d 621 (1983). Thus, there was no reason to exclude the test results.

(d) It is contended that the police officers breached a duty owed to defendant as set out in OCGA § 40-6-392(a)(3) and (4) by not insuring that he obtained a blood test.

When defendant was advised that he had a right to an independent test and indicated he wanted one and could pay for it, the officers took him to the Forsyth County Hospital. When told by the receptionist there that it would have to be paid for in advance, defendant refused and insisted that the county should pay. So the officers returned with him to the jail.

The law does not require the government to pay for two tests. The second is the driver's option, so that he may challenge the results of the officers-requested test. The cost of the optional test, to be administered by a qualified person of the driver's own choosing, must be borne by the driver, at least where he is able to pay, as defendant here said he was. The facts show that defendant was afforded the opportunity to obtain an independent test of his blood, and that is all that is required. Grizzle v. State, 153 Ga.App. 364, 265 S.E.2d 324 (1980).

"Where a defendant makes no arrangements to secure an independent test, the mere fact that it was not made 'fails to disclose any reason to suppress the evidence merely because the defendant was unable to obtain a test of his own choosing.' " Harper v. State, 164 Ga.App. 230(1), 296 S.E.2d 782 (1982). Accord State v. Laycock, 151 Ga.App. 145, 147, 259 S.E.2d 150 (1979).

No error was committed in denying the motion to suppress.

3. Appellant enumerates as error the denial of the motion to quash count two charging him with driving under the influence. He claims as ground that his arrest was illegal because it was not authorized to be accomplished by citation pursuant to OCGA § 17-4-23 since the crime was not committed in the deputy sheriff's presence and the latter did not receive the information from a law enforcement officer but only from an off-duty policeman. The simple answer is that the arrest was effected by the citizen, taking defendant's view of it, before the deputy sheriff got to the scene, pursuant to OCGA §§ 17-4-60 and 61. It was not accomplished by following OCGA § 17-4-23(a): "A law enforcement officer may arrest a person accused of violating any law ... governing the operation ... of motor vehicles by the issuance of a citation,...." (Emphasis supplied.) It did not serve as a basis for the arrest, in lieu of a warrant.

The citation thus became merely a means of recording the arrest, informing defendant of the charge, and advising him when and where to appear in court, which are other functions it serves. It later became inoperable as to the latter, of course, because an indictment was...