Chumley v. State

Court of Appeals of Georgia

Chumley v. State

287 S.E.2d 630, 160 Ga. App. 619, 1981 Ga. App. LEXIS 3113

CourtCourt of Appeals of Georgia

DecidedDecember 4, 1981

Docket62361

StatusPublished

Cited by3 cases

This text of 287 S.E.2d 630 (Chumley 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

Chumley v. State, 287 S.E.2d 630, 160 Ga. App. 619, 1981 Ga. App. LEXIS 3113 (Ga. Ct. App. 1981).

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Opinions

Carley, Judge.

The instant interlocutory appeal was granted in order that we might answer the following question: Is a motion to suppress a proper procedural device by which to secure a ruling on the admissibility of the results of an intoximeter test alleged to have been administered in violation of Code Ann. § 68A-902.1? The trial court, relying upon State v. Sanders, 154 Ga. App. 305, 306 (4) (267 SE2d 906) (1980), [620]*620held, in effect, that the issue of whether the test results were or were not admissible under Code Ann. § 68A-902.1 could be determined only at trial when such results were offered into evidence rather than by a pre-trial motion to suppress. The trial court refused to consider appellant’s motion insofar as it raised issues of the test results’ admissibility under Code Ann. § 68A-902.1. In this regard the trial court erred. “It is our conclusion that at the present stage of development of the law in this state, the results of an intoximeter test, if improperly obtained, are subject to a motion to suppress or alternatively subject to an objection at the time the evidence is offered ... In reaching this decision, we have not ignored the case of State v. Sanders, 154 Ga. App. 305, 306 (4), [supra]. We find that case to be different on its facts. There it is apparent that the motion to suppress was directed at the officer’s testimony because the officer allegedly had made an unlawful arrest and as a result of that arrest was prepared to testify as to his physical observations of the defendant’s driving conduct and a breath test conducted at the scene. There is no indication that the proper warnings and advice were not given. There being no physical evidence seized there was nothing to suppress. Here we are confronted with the results of a test which was allegedly conducted in violation of statutorily and judicially mandated rights. [Cit.]” State v. Johnston, 160 Ga. App. 71, 73 (1981). Accordingly, the order in the instant case is reversed and the case remanded with direction that a new hearing be held and a new order on appellant’s motion to suppress be entered.

Decided December 4, 1981. Larry W. Yarbrough, for appellant. Herbert A. Rivers, Solicitor, J. Lynn Rainey, Assistant Solicitor, for appellee.

Judgment reversed and case remanded with direction.

Quillian, C. J., McMurray, P. J., Shulman, P. J., Birdsong, Sognier and Pope, JJ., concur. Deen, P. J., and Banke, J., dissent.

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Carley, Judge.

The instant interlocutory appeal was granted in order that we might answer the following question: Is a motion to suppress a proper procedural device by which to secure a ruling on the admissibility of the results of an intoximeter test alleged to have been administered in violation of Code Ann. § 68A-902.1? The trial court, relying upon State v. Sanders, 154 Ga. App. 305, 306 (4) (267 SE2d 906) (1980), [620]*620held, in effect, that the issue of whether the test results were or were not admissible under Code Ann. § 68A-902.1 could be determined only at trial when such results were offered into evidence rather than by a pre-trial motion to suppress. The trial court refused to consider appellant’s motion insofar as it raised issues of the test results’ admissibility under Code Ann. § 68A-902.1. In this regard the trial court erred. “It is our conclusion that at the present stage of development of the law in this state, the results of an intoximeter test, if improperly obtained, are subject to a motion to suppress or alternatively subject to an objection at the time the evidence is offered ... In reaching this decision, we have not ignored the case of State v. Sanders, 154 Ga. App. 305, 306 (4), [supra]. We find that case to be different on its facts. There it is apparent that the motion to suppress was directed at the officer’s testimony because the officer allegedly had made an unlawful arrest and as a result of that arrest was prepared to testify as to his physical observations of the defendant’s driving conduct and a breath test conducted at the scene. There is no indication that the proper warnings and advice were not given. There being no physical evidence seized there was nothing to suppress. Here we are confronted with the results of a test which was allegedly conducted in violation of statutorily and judicially mandated rights. [Cit.]” State v. Johnston, 160 Ga. App. 71, 73 (1981). Accordingly, the order in the instant case is reversed and the case remanded with direction that a new hearing be held and a new order on appellant’s motion to suppress be entered.

Decided December 4, 1981. Larry W. Yarbrough, for appellant. Herbert A. Rivers, Solicitor, J. Lynn Rainey, Assistant Solicitor, for appellee.

Judgment reversed and case remanded with direction.

Quillian, C. J., McMurray, P. J., Shulman, P. J., Birdsong, Sognier and Pope, JJ., concur. Deen, P. J., and Banke, J., dissent.

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287 S.E.2d 630, 160 Ga. App. 619, 1981 Ga. App. LEXIS 3113, Counsel Stack Legal Research, https://law.counselstack.com/opinion/chumley-v-state-gactapp-1981.

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