Wiggins v. State
| Decision Date | 21 April 1982 |
| Docket Number | No. 38368,38368 |
| Citation | 290 S.E.2d 427,249 Ga. 302 |
| Parties | WIGGINS v. The STATE. |
| Court | Georgia Supreme Court |
Henry C. Ross, Savannah, for William Wiggins.
Spencer Lawton, Dist. Atty., Savannah, Michael J. Bowers, Atty. Gen., for the State.
Wiggins' interlocutory appeal from the denial of his motion to suppress comes to this court because, during his prosecution for a highway speeding violation, he challenged the constitutionality of the provision of Code Ann. § 68-2101(c)(2) which requires a county or municipal (but not a state) law enforcement officer to notify any person against whom he intends to make a speeding case based on evidence of speed obtained by the use of a radar speed detection device that the alleged violator has a right to request the county or municipal officer to test the device for accuracy.
(a) The State's contention that the constitutional challenge is not presented "with fair precision" is without merit. DeKalb County v. Post Properties, Inc., 245 Ga. 214, 218, 263 S.E.2d 905 (1980). We have held that a provision attacked was identified with requisite precision although reference was made to its section of the annotated code rather than to its official citation. Stewart v. State, 246 Ga. 70(1), 268 S.E.2d 906 (1980); Grantham v. State, 244 Ga. 775, 262 S.E.2d 777 (1979). We now hold that the statutory provision attacked is identified "with fair precision" where its substantive provisions are set forth with sufficient particularity to enable it to be found among and distinguished from other statutory provisions although neither its official nor its unofficial citation is set forth in the pleading raising the constitutional challenge.
(b) The state next contends that the constitutional challenge cannot be presented by way of a motion to suppress because the officer's use of the radar speed detection device was not a "search" and did not result in a "seizure" of "tangible evidence." Code Ann. § 27-313; State v. Sanders, 154 Ga.App. 305, 306(4), 267 S.E.2d 906 (1980).
In State v. Johnston, 160 Ga.App. 71, 286 S.E.2d 47 (1981), the Court of Appeals held that considerations of judicial economy permit an accused to challenge the admissibility of the results of an intoximeter "breath test" either by way of a motion to suppress or by objection at the time the test results are offered as evidence.
Neither sort of evidence (breath test or radar use) fits neatly within traditional concepts pertaining to the search for and seizure of tangible items of proof. However, judicial economy sometimes can be served by challenges to the admissibility of evidence being presented by way of motions in limine rather than at the time of offer as evidence. We hold, therefore, that the admissibility of evidence gained by use of a radar speed detection device properly may be raised by motion in limine although the motion may be styled as, or in the form of, a motion to suppress, and that the trial court has discretion to hear the motion pre-trial or to reserve ruling on the admissibility of the evidence until it is offered as evidence during trial.
(c) We decide the merits of the constitutional challenge adversely to Wiggins by applying the "rational relationship" standard of judicial scrutiny. McDaniel v. Thomas, 248 Ga. 632, 638-39, 646-48, 285 S.E.2d 156 (1981).
The classification drawn by Code Ann. § 68-2101(c)(2) between county and municipal officers, who must offer to prove to suspected speeders the accuracy of their radar speed detectors, and state officers, who need not make such an offer, is rationally related to the legitimate governmental objective of preventing local law enforcement officers from using radar to operate local revenue producing "speed traps."
The General Assembly properly could consider the historic fact that some municipalities and counties in Georgia have abused and misused the speeding laws to produce local revenues whereas the Georgia State Patrol has not engaged in such practices because of the disciplinary controls exercised by the state over State Patrolmen. The classification is not impermissible. Garren v. State, 245 Ga. 323, 325, 264 S.E.2d 876 (1980).
In order to put these issues into context, we must ascertain the conditions which the General Assembly has imposed upon the admissibility of evidence of speed gained by a state law enforcement officer through use of a radar speed detection device. Evidence of speed obtained by a state officer by use of a radar speed detector is admissible if: (1) the device was "marketed under the name 'Vascar', or [is] any similar device operating under the same or similar principle which is approved by the Department of Public Safety for the measurement of speed, including any devices for the measurement of speed or velocity based on the principle of radar," (2) the state law enforcement agency "possesses a license in compliance with the applicable parts of 47 CFR, Part 89 of the Federal Communications Commission rules," (3) the device "before being placed in service and annually after being placed in service, is certified for compliance by a technician possessing at least a Second Class Radiotelephone License from the Federal Communications Commission," (4) the device has passed tests "for accuracy" conducted "in accordance with the manufacturer's recommended procedure" by the officer or officers using the device, these tests having been conducted "at the beginning and ending of each duty tour" and the results of the tests having been recorded and maintained, and (5) the vehicle from which the device was being operated at the time of its use was "visible to approaching motorists for a distance of at least 500 feet." Code Ann. §§ 68-2101(b), (c), 68-2103, and 68-2107. Failure of proof as to any one of those elements results in the evidence of speed gained by use of the speed detection device being inadmissible.
(b) During the hearing on the motion to suppress, the state sought to prove approval of the device by the Department of Public Safety (part of requirement no. 1, supra) through the testimony of the arresting officer to the effect that, to the best of his knowledge, the device had been approved by the Department for use in Georgia. Wiggins contends that this evidence should have been excluded from the court's consideration on the ground that it is hearsay.
A proper objection would have been to the witness' lack of personal knowledge. McCormick on Evidence, Second Edition, § 247. A hearsay objection would not have been...
To continue reading
Request your trial
-
Roberts v. State
...or by interlocutory appeal by defendants who lose. Chumley v. State, 160 Ga.App. 619, 287 S.E.2d 630 (1981), and Wiggins v. State, 249 Ga. 302, 290 S.E.2d 427 (1982). Although not as clearly stated as it might have been, hindsight providing a brighter glass for reflection, the trial judge's......
-
Jones v. State
...until it is offered during trial.” Holland v. State, 176 Ga.App. 343, 344(3), 335 S.E.2d 739 (1985). See Wiggins v. State, 249 Ga. 302, 303(1)(b), 290 S.E.2d 427 (1982). Moreover, Jones clearly was aware of the his prior convictions that the State sought to introduce for impeachment purpose......
-
State v. Johnston
...Although Johnston's motion was styled a "Motion to Suppress," the trial court could treat it as a motion in limine. Wiggins v. State, 249 Ga. 302, 290 S.E.2d 427 (1982). A motion in limine is a pretrial 3 motion which may be used two ways: 1) The movant seeks, not a final ruling on the admi......
-
Hertz Corp. v. McCray, A90A2237
...or duplicate originals of any original business record or document are admissible in lieu of the original. Wiggins v. State, 249 Ga. 302, 305(2)(c), 290 S.E.2d 427; Smith v. Smith, 224 Ga. 442, 443(1), 162 S.E.2d 379. A witness identifying business records under OCGA § 24-3-14 does not have......