Wyatt v. State
| Decision Date | 27 May 1986 |
| Docket Number | No. 72163,72163 |
| Citation | 346 S.E.2d 387,179 Ga.App. 327 |
| Parties | WYATT v. The STATE. |
| Court | Georgia Court of Appeals |
Darel C. Mitchell, Decatur, for appellant.
Ralph Bowden, Sol., Nancy Jackson and Henry Newkirk, Asst. Sols., for appellee.
Wyatt appeals from his conviction of driving under the influence of alcohol.
1. Appellant contends the trial court erred by denying his motion in limine to suppress testimony that he refused to take a breath test, and by granting the State's motion in limine to suppress testimony that appellant's driver's license had not been suspended.
The evidence disclosed that appellant was arrested for driving under the influence of alcohol. The arresting officer read the implied consent warning to appellant, who stated that he understood and agreed to take a breath test. On arrival at the police station appellant was again given the implied consent warning and initialed the warning form, indicating that he understood the warning, agreed to take the test and did not desire an additional test. When the testing officer attempted to give appellant the breath test, appellant placed the tube in his mouth but would not blow in it. He was warned that he would be given two more chances to blow into the tube, and if he did not do so it would be considered a refusal to take the test. On each of two subsequent attempts to administer the test appellant placed the tube in his mouth but placed his tongue over the mouthpiece so his breath did not go through the tube. Appellant was then recorded as refusing to take the test, and an implied consent affidavit was forwarded to the State Patrol. Appellant requested a hearing with the Department of Public Safety. The arresting officer did not appear at the hearing so appellant's license was not suspended. No evidence was presented at the hearing.
Appellant testified he was not given the implied consent warnings by the arresting officer or at the police station, and thus, his motion in limine should have been granted because there was no affirmative showing by the State that the warning was given to appellant, as required by Steed v. City of Atlanta, 172 Ga.App. 839, 325 S.E.2d 165 (1984). This contention has been decided adversely to appellant in State v. Dull, 176 Ga.App. 152, 154, 335 S.E.2d 605 (1985), and a defendant's refusal to take a blood alcohol test is relevant and admissible. OCGA § 40-6-392(c); Wessels v. State, 169 Ga.App. 246, 247(2), 312 S.E.2d 361 (1983). Hence, it was not error to deny appellant's motion in limine.
The State's motion in limine was granted properly, as evidence that appellant's driver's license was not, and would not, be suspended was not relevant to the issue of whether or not appellant was driving under the influence of alcohol at the time of his arrest. Evidence must relate to the questions being tried by the jury and bear upon them either directly or indirectly; irrelevant matter should be excluded. OCGA § 24-2-1. What occurred at the administrative hearing subsequent to appellant's arrest would have no bearing on whether or not he was driving under the influence of alcohol, which was the only issue before the jury. Further, appellant was allowed to testify that he had a current, valid driver's license at the time of trial. Thus, he could not have been harmed by any error in granting the State's motion, and the burden is on a party claiming error not only to show error, but that he was injured by such error. Anderson v. State, 165 Ga.App. 885, 887(3), 303 S.E.2d 57 (1983).
2. Appellant contends the trial court erred by allowing the State to ask appellant on cross-examination, over objection, how much he would have to drink before he considered himself drunk. After appellant's objection was overruled, appellant did not answer the question and the State did not ask the question again. Thus, there is nothing for us to review. Hudson v. State, 175 Ga.App. 692(1), 334 S.E.2d 20 (1985).
3. In his fourth, fifth and sixth enumerations of error appellant contends the trial court erred by allowing the State to cross-examine appellant about prior DUI arrests without first showing him certified copies of prior convictions. This issue arose when appellant responded to a question on cross-examination that he always stopped with one drink if he was going to be driving. The prosecuting attorney was then allowed, over objection, to question appellant about his prior convictions for driving under the influence of alcohol.
Once appellant testified that he always stopped after one drink if he was going to drive, the State was properly allowed to impeach this testimony by questioning appellant about his prior DUI convictions. OCGA § 24-9-82; Hammond v. State, 169 Ga.App. 97(2), 311 S.E.2d 523 (1983). The fact that appel...
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