Walker v. State
| Decision Date | 28 May 1992 |
| Docket Number | No. A92A0470,A92A0470 |
| Citation | 204 Ga.App. 559,420 S.E.2d 17 |
| Parties | WALKER v. The STATE. |
| Court | Georgia Court of Appeals |
Virgil L. Brown & Associates, Virgil L. Brown, Eric D. Hearn, Zebulon, and Bentley C. Adams, III, Thomaston, for appellant.
W. Fletcher Sams, Dist. Atty. and Randall K. Coggin, Asst. Dist. Atty., for appellee.
James A. Walker III was convicted in probate court of the offenses of speeding and driving with an alcohol concentration of .12 grams percent or more, in violation of OCGA § 40-6-391(a)(4). He appealed to the superior court pursuant to OCGA § 40-13-28. The superior court made a determination, based on a review of the certified record from the probate court, that Walker was guilty of the offenses. Walker appeals his conviction.
1. Walker contends that his due process rights were violated because he was denied a de novo review of his conviction returned by a non-lawyer judge in the probate court. The scope of review of probate court proceedings required by OCGA § 40-13-28 was recently delineated by the Georgia Supreme Court in Walton v. State, 261 Ga. 392(2), 405 S.E.2d 29 (1991). The court held: Id. at 394, 405 S.E.2d 29. This review process provides a method for correcting errors of law which may have occurred in the courts of the non-lawyer judges of the probate court. Walker contends that this procedure violates the holding in North v. Russell, 427 U.S. 328, 96 S.Ct. 2709, 49 L.Ed.2d 534 (1976) which held that an accused, subject to possible imprisonment, was not denied due process when tried before a non-lawyer inferior court judge provided a later trial de novo was available under Kentucky's two-tiered system. The U.S. Supreme Court did not hold that a system providing for a trial de novo was the only system which would satisfy due process requirements. The procedure in Georgia provides for a review of the proceedings held before the probate judge. As pointed out in Walton: "A review of the record from a court without a law-trained judge has been held to satisfy due process in Arizona, Palmer v. Superior Court in & For Maricopa County [114 Ariz. 279], 560 P2d 797, 799 (Ariz.1977) and in Wyoming, Canaday v. State, 687 P2d 897, 899 (Wyo.1984)." Walton, supra, 261 Ga. at 394, n. 5, 405 S.E.2d 29. Therefore Walker's argument that he has been denied due process must fail.
2. Walker enumerates as error that the D.U.I. statutory scheme is unconstitutional. He argues that the intoximeter results should have been excluded from evidence because when OCGA § 40-1-1, which defines "Alcohol Concentration" as "grams of alcohol per 100 milliliters of blood or grams of alcohol per 210 liters of breath," is read with OCGA § 40-6-391, an evidentiary presumption is created that all people submitted to breath tests to determine alcoholic content have the same lung capacity or blood to air ratio. Thus, he concludes, if a person had an increased or decreased lung capacity, the ratio would be inaccurate. Walker argues that the evidentiary presumption that Walker's lung capacity was "normal" unconstitutionally shifted the burden of proof to the defendant. Walker points us to opinions in several states which have reached this issue, all in the context of jury charges. Charges regarding the use of the blood to alcohol ratio have been held to be harmless so long as they are given in conjunction with a qualifying instruction regarding the inconclusiveness of the ratio. In this case, no jury was present and the court considered the weight to be given to the intoximeter results, as well as other evidence regarding Walker's condition at the time of the arrest. In evaluating the totality of the evidence, it found that Walker committed 1) the act of driving; and 2) that he was "under the influence." Therefore, we find that the state met its burden of proving beyond a reasonable doubt without unconstitutionally shifting the burden to the defendant. See generally Lattarulo v. State, 261 Ga. 124, 401 S.E.2d 516 (1991).
3. Walker further alleges that the trial court erred in admitting the state's radar results. He argues that the state failed to show that the radar device was approved by the Department of Public Safety, that the device had been certified by a technician possessing at least a Second Class Radiotelephone License from the Federal Communications Commission, that the device passed accuracy tests before and after the officer's tour of duty and that test results were recorded and maintained in accordance with Wiggins v. State, 249 Ga. 302, 304, 290 S.E.2d 427 (1982). At trial, the arresting officer testified that he was certified to use radar and introduced a copy of the certification of the radar device in his patrol car indicating that it had been tested in accordance with the requirements of the Department of Public Safety. He further testified that regularly maintained records of calibrations indicate that the radar was properly calibrated several hours prior to the arrest, but was not asked whether he tested it at the end of his shift. The absence of evidence regarding this element is harmless and we find that the evidence substantially complies with the requirements set forth in Wiggins.
Walker objected to the copy of the certification on best evidence and hearsay grounds. The documents were admissible under OCGA §§ 24-7-20, 24-5-26 and 24-3-14, as well as Wiggins, supra. See also Williamson v. State, 194 Ga.App. 439, 440(3), 390 S.E.2d 658 (1990).
Walker also argues that the state failed to show that the radar was not operated within 500 feet of a...
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...there are deficiencies in the record. Thus, the due process rights of the defendant are not violated. Id. See also Walker v. State, 204 Ga.App. 559, 420 S.E.2d 17 (1992) (A defendant's due process rights were not violated just because his conviction, by a non-lawyer judge, was not entitled ......
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...the copies were admissible under OCGA §§ 24-7-20 and 24-5-26 to establish the foundational requirements. Walker v. State, 204 Ga.App. 559, 561, 420 S.E.2d 17 (1992); Williamson v. State, 194 Ga.App. 439, 440, 390 S.E.2d 658 The trial court did not err in denying Nairon's motion for a direct......
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