Bass v. State

519 S.E.2d 294, 238 Ga. App. 503, 99 Fulton County D. Rep. 2466, 1999 Ga. App. LEXIS 861
CourtCourt of Appeals of Georgia
DecidedJune 10, 1999
DocketA99A0210
StatusPublished
Cited by9 cases

This text of 519 S.E.2d 294 (Bass v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Bass v. State, 519 S.E.2d 294, 238 Ga. App. 503, 99 Fulton County D. Rep. 2466, 1999 Ga. App. LEXIS 861 (Ga. Ct. App. 1999).

Opinions

Andrews, Judge.

Carson Jackson Bass, Jr. appeals from denial of his motion for new trial after conviction of driving under the influence to the extent he was less safe to drive,1 contending that venue was not proven and that admission of the results of his alco-sensor and Intoxilyzer 5000 tests was error. For the reasons which follow, we affirm.

1. Viewed with all inferences in favor of the jury’s verdict, the evidence was that, on Sunday, August 31, 1997, Labor Day weekend, uniformed Officer Wright of Leslie, Georgia, was patrolling within the city limits in a marked patrol car. As he reached the city limits and was preparing to make his normal turnaround, he noticed a Ford pickup being driven by Bass on Highway 280 at 70 mph, in excess of the speed limit. Because the speeding occurred outside his jurisdiction, Wright made his usual turnaround and started back into Leslie, following the truck which slowed down as it entered the city limits. Wright continued behind the truck as it turned left onto Seabord and then left onto Bailey Avenue. Wright noticed no traffic violations to this point. As the truck turned right onto Allen Street, a two-lane road which is also Highway 118, however, it swung wide and into the oncoming traffic lane where it remained for 150 to 200 yards. At this point, Wright activated his blue lights and pulled Bass over for the improper turn at approximately 8:45 p.m.

Bass produced his license and followed Wright to the rear of his truck where Wright noticed that Bass was “more nervous than what I thought would be appropriate.” Bass was talking very fast, and his eyes were quite red. As the two talked, Wright noticed the odor of alcohol on Bass’ breath.

At this point, Wright decided to administer an alco-sensor test. Prior to doing so, he read the implied consent notice required by OCGA § 40-5-67.1 (b) (2). The alco-sensor was positive for alcohol. After waiting ten minutes, with Bass seated in his patrol car, Wright administered the test a second time to be sure it was not mouth alcohol that was registering. Bass was then transported the ten to fifteen minutes it took to get to Americus and the Sumter County Sheriff’s Office. There, Sumter County Deputy Bryant conducted the Intoxilyzer 5000 test on Bass’ breath, resulting in sequential readings of .127 and .130 at 9:29 and 9:32 p.m., respectively.

After being told of the test results, Bass did not immediately request an independent test. Approximately fifteen to twenty minutes later, however, while being booked, Bass indicated that he [504]*504wanted one. Officer Wright then called Sumter Regional Hospital to inquire and informed Bass that a blood test was $120 and a urine test was $80.2

Bass said he wanted a urine test, but did not have $80. A phone was available to prisoners at the sheriff’s department, and they were not limited as to the number of calls which they could make. Although Bass did make phone calls, he never told Wright that he had an ATM card or that someone could meet him at the hospital with the money and made no further mention of an independent test.

Bass was then transported back to Leslie by Officer Wright. Someone met Bass at the Leslie Police Department and posted his bond.

Bass, a landscaper in Americus, testified that he had worked outside all day clearing land that Sunday and that might have accounted for his red eyes. He then attended a dinner party by the river. While there, he drank two vodka and orange juices, each containing about four ounces of vodka. He ate a full meal and left the party around 8:30 p.m. and opined that he “shouldn’t have been drunk.”

In rebuttal, the State presented Georgia Bureau of Investigation analyst Hargett who opined that, if in fact Bass had had only the two drinks to which he testified, his blood alcohol should have been .04 when it was tested.

The evidence was legally sufficient. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); Gilbert v. State, 262 Ga. 840 (1) (426 SE2d 155) (1993).

2. Bass contends that the State failed to prove venue in Sumter County beyond a reasonable doubt, based primarily on Graves v. State, 269 Ga. 772 (504 SE2d 679) (1998).

While Graves does state that the filing of a not guilty plea preserves a defendant’s appellate challenge to venue,

that case also recognizes the general rule that “when the evidence is not conflicting and when no challenge to venue is raised at trial,” slight evidence will be sufficient to prove venue. Id. at 773. See also Minter v. State, 258 Ga. 629 (373 SE2d 359) (1988); Joiner v. State, 231 Ga. App. 61 (497 SE2d 642) (1998).

Frisbey v. State, 236 Ga. App. 883, 885 (2) (514 SE2d 453) (1999).

Here, as in Frisbey, other than the entry of a not guilty plea, Bass did not contest venue in Sumter County, and there was sufficient circumstantial evidence of venue. Officer Wright, while a city [505]*505officer, upon stopping any suspect, including Bass, radioed to the Sheriffs Office to let them know his location in case of trouble. Officer Wright took Bass to Americus to the Sumter County Sheriff’s Office for administration of the Intoxilyzer 5000 test, a trip of ten to fifteen minutes from the location of the stop. Sumter County Deputy Bryant administered the Intoxilyzer. When Bass indicated an interest in an independent test, Officer Wright contacted the Sumter Regional Hospital to make inquiries. This evidence of venue was sufficient. Busch v. State, 234 Ga. App. 766 (507 SE2d 868) (1998).

3. Bass contends that the trial court’s admission of the Intoxilyzer 5000 results was error because the implied consent notice was read before he was placed under arrest and not in the exact language of the statute.

(a) With regard to the latter, since the trial court’s ruling,

the legislature has amended OCGA § 40-5-67.1 (b) so that it plainly does not require a verbatim reading of the implied consent notice. In passing the amendment, the General Assembly declared, but did not codify, “that while suspects in (DUI) cases should be informed of their rights regarding the administration of chemical testing, no such suspect is entitled to a notice which tracks the exact language of the implied consent statute, so long as the substance of the notice remains unchanged.” Ga. L. 1998, p. 210, § 1. The amended OCGA § 40-5-67.1 (b), effective March 27, 1998, provides that the implied consent notice “shall be read in its entirety but need not be read exactly so long as the substance of the notice remains unchanged.”

State v. Levins, 234 Ga. App. 739-740 (2) (507 SE2d 246) (1998).

The statute is to be applied retroactively and is applicable to the present case. See, e.g., Sheridan v. State, 236 Ga. App. 350 (511 SE2d 908) (1999).

None of the deviations complained of by Bass in any way changed the substance of the notice, and there was no error in denying the motion to suppress on this ground.

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Bass v. State
519 S.E.2d 294 (Court of Appeals of Georgia, 1999)

Cite This Page — Counsel Stack

Bluebook (online)
519 S.E.2d 294, 238 Ga. App. 503, 99 Fulton County D. Rep. 2466, 1999 Ga. App. LEXIS 861, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bass-v-state-gactapp-1999.