Whittington v. State
| Decision Date | 11 September 1987 |
| Docket Number | No. 74644,74644 |
| Parties | WHITTINGTON v. The STATE. |
| Court | Georgia Court of Appeals |
Michael P. Katz, Virgil L. Brown, Concord, for appellant.
William J. Smith, Dist. Atty., Michael D. Reynolds, Asst. Dist. Atty., for appellee.
Appellant was tried before a jury on a four-count indictment, and verdicts of guilty were returned on all four counts. Appellant was granted a new trial as to two of the counts, but his motion for a new trial was denied as to the counts which charged him with driving under the influence and with driving although his license had been suspended as an habitual violator. Appellant appeals from the judgments of conviction and sentences entered on the jury verdicts as to those two counts.
1. Appellant asserts that, in reviewing the general ground of his motion for new trial, the trial court applied an erroneous standard of "any evidence." However, the record does not support this contention. It reveals no reference to the standard employed by the trial court in denying appellant's motion for new trial on the general grounds. It is presumed that the trial court applied the correct standard and our own review shows that the general grounds are without merit. After reviewing the entire record, we find that a rational trior of fact could have found appellant guilty, beyond a reasonable doubt, of being an habitual violator and of driving under the influence. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).
2. The trial court's admission into evidence of the results of appellant's intoximeter test is enumerated as error. The contention is that appellant was coerced into submitting to the test, as he was informed that his refusal to do so would result in the suspension of his driver's license for a period of "six to twelve months." Under the provisions of OCGA § 40-5-63 (b), as it existed at the time of appellant's arrest, "[a]ny suspension made pursuant to Code Section 40-5-55 shall be for six months; provided, however, that, where a person who has refused to submit to a test or tests provided for in Code Section 40-5-55 has been charged with homicide by a vehicle as provided in Code Section 40-6-393, the suspension shall be for 12 months." As there were no fatalities resulting from appellant's alleged intoxicated driving, he urges that it was impermissibly deceptive for the officer to inform him that, if he refused to submit to the State-administered test, his license could be suspended for more than six months.
Allen v. State, 254 Ga. 433, 434(1a), 330 S.E.2d 588 (1985). Allen v. State, supra at 434(la), fn. 1, 330 S.E.2d 588. Subsection (a) (4) of OCGA § 40-6-392, the statute which defines the right to refuse to submit to a State-administered test, merely provides that "[t]he arresting officer at the time of arrest shall advise the person arrested of his rights to a chemical test or tests according to this Code Section." Thus, our "Implied Consent Statute" only requires that the arrestee be informed of his right to an additional test. There is neither a statutory nor a constitutional requirement that the arresting officer inform the arrestee of the consequences of the refusal to submit to the State-administered test. See South Dakota v. Neville, 459 U.S. 553, 103 S.Ct. 916, 74 L.Ed.2d 748 (1983). However, a warning to an arrestee of the legitimate consequences of his refusal to submit to a State-administered test is neither constitutionally nor statutorily prohibited. The State is authorized to create such consequences as a means of lawfully inducing an arrestee into choosing his option of submitting to a State-administered test. See South Dakota v. Neville, supra. Wessels v. State, 169 Ga.App. 246, 247(1), 312 S.E.2d 361 (1983). See also Sorrow v. State, 178 Ga.App. 83, 342 S.E.2d 20 (1986). Accordingly, by informing the arrestee of the legitimate consequences of his refusal to submit to the State-administered test, the arresting officer is engaging in an act of lawful inducement. Thus, the issue presented for resolution is whether, under the circumstances of this case, the arresting officer unlawfully coerced appellant's election to submit to the State-administered test by informing him that his refusal could result in a suspension of his driver's license for a period greater than six months or whether the arresting officer legally induced that election notwithstanding the non-fatal consequences of appellant's act.
OCGA § 40-6-392 (a) (4) mandates that the arrestee be advised of his right to alternative testing at the time of arrest. Our Supreme Court has held that Perano v. State, 250 Ga. 704, 707, 300 S.E.2d 668 (1983). Since the statute requires that the arrestee be informed of his right to additional testing at the point of his arrest, it follows that any other warnings or notifications purportedly given to induce his submission to the State-administered test are also to be made at that time and are to be considered from the perspective of such circumstances as then existed. However, at the point of arrest, it is not always possible for a law officer to know whether the arrestee will ultimately be charged with violating OCGA § 40-6-393 and thus whether the arrestee will ultimately face suspension of his license for twelve rather than for six months upon his refusal to take the State-administered test. This would be especially true where, as in the present case, the arrest is incident to the investigation of a vehicular collision. Even where the arrest is made merely for impaired driving which, to the officer's current knowledge, has yet to result in a physical injury, it is entirely possible that the arrestee may well have been involved in a prior incident, such as hit and run, of which the officer is yet unaware. Thus, it would be unreasonable to require that a police officer determine, at the point of each DUI arrest, whether or not the arrestee might ultimately be charged under OCGA § 40-6-393 and to require that the officer tailor his warnings accordingly. The problem is compounded by passage of the 1987 amendment to OCGA § 40-5-63 (b), whereby persons charged with violating OCGA § 40-6-394 are now included among those who will be subject to a twelve-month suspension for refusal...
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