Hudgins v. State

337 S.E.2d 378, 176 Ga. App. 719, 1985 Ga. App. LEXIS 2930
CourtCourt of Appeals of Georgia
DecidedOctober 17, 1985
Docket70919
StatusPublished
Cited by8 cases

This text of 337 S.E.2d 378 (Hudgins 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
Hudgins v. State, 337 S.E.2d 378, 176 Ga. App. 719, 1985 Ga. App. LEXIS 2930 (Ga. Ct. App. 1985).

Opinion

Sognier, Judge.

Appellant was convicted of the misdemeanor offense of operating a motor vehicle while under the influence of alcohol and while there was more than 0.12 percent of alcohol in his blood.

1. Appellant contends the trial court erred by denying his motion in limine and admitting into evidence his in-custody statements. He argues first that the statements were admitted in violation of OCGA § 17-7-210, which provides that upon timely written request, a defendant is entitled to a copy or summary of any written or oral statement made by him while in police custody, and failure to provide him with a copy or summary of his statements at least 10 days prior to trial makes them inadmissible in evidence.

The statements in question were made after appellant was stopped by a police officer who observed appellant driving south in the northbound lane of Interstate 85. Appellant then cut across six lanes of traffic and brought his car to a stop on the right hand side of the interstate. The officer approached and asked appellant for his driver’s license, asked where he had been and where he was going. Appellant stated that he and a lady in the car had been at the airport in the lounge, awaiting a late flight to Las Vegas to get married. After talking to appellant a few minutes the officer noticed that appellant had a strong odor of alcohol, his eyes were glassy, and he was acting in a sluggish, intoxicated manner. The officer then placed appellant under arrest. The officer read appellant the implied consent warning and he agreed to take a breath test.

Appellant argues that these statements were not admissible because he was not furnished a summary of his statements pursuant to a timely, written request, and because he was not advised of his Miranda rights (Miranda v. Arizona, 384 U. S. 436 (86 SC 1602, 16 LE2d 694). These arguments are without merit.

*720 In Berkemer v. McCarty, 468 U. S. — (104 SC —, 82 LE2d 317) (1984), the court held that a motorist detained pursuant to a traffic stop is not taken into custody for the purpose of the Miranda warning, and this court has adopted that rule. Wilson v. State, 173 Ga. App. 805, 806 (1) (328 SE2d 418) (1985). Since the statements in question were made in response to preliminary questions after appellant stopped and before he was placed under arrest, no Miranda warning was required. Statements made by appellant after he was arrested were made voluntarily and were not incriminating. They related primarily to appellant’s personal problems, and a statement that when he came out of the airport he missed the turn onto 1-85 and crossed the interstate to get in the proper lane. Since the statements were voluntary, even had they been incriminating they were admissible. Allums v. State, 161 Ga. App. 842, 846 (5) (288 SE2d 783) (1982).

Since appellant’s statements were neither incriminating nor exculpatory, the State was not required to furnish appellant a summary of his oral statements. Furlow v. State, 172 Ga. App. 185, 186 (2) (322 SE2d 317) (1984). Accordingly, it was not error to deny appellant’s motion in limine on these grounds.

2. Appellant’s third and fourth enumerations contend error in allowing the intoximeter operator to testify as to his own qualifications, and to testify relying on the opinions of others. Appellant argues that because a valid operator’s permit was not introduced into evidence, the witness was testifying as a non-qualified expert and his testimony should not have been allowed. This contention has been decided adversely to appellant. Clarke v. State, 170 Ga. App. 852-853 (319 SE2d 16) (1984).

Appellant’s contention that the intoximeter operator was not an expert and his testimony was based on the opinions of others is not supported by the transcript. The officer administering the test stated that in 1983 he received 40 hours of training in operating the autointoximeter and received certification as a qualified operator upon completion of his training. He was so certified at the time the test was administered to appellant. The operator followed all approved procedures in administering the test, and when appellant was tested he registered a blood alcohol count of 0.22 grams of alcohol. Since the operator was certified to operate the machine on which appellant was tested, it was not error to allow the operator to testify to the results of appellant’s breath test. Arnold v. State, 163 Ga. App. 94, 95 (1) (292 SE2d 891) (1982). See also State v. Allen, 165 Ga. App. 584 (300 SE2d 337) (1983).

3. Appellant contends the trial court erred by failing to give the charge relating to presumptions approved in McCann v. State, 167 Ga. App. 368 (306 SE2d 681) (1983), contending that the charge in *721 that case was made mandatory by Olsen v. State, 168 Ga. App. 296, 297 (2) (308 SE2d 703) (1983). We need not address this issue, as the accusation charged appellant with driving under the influence of alcohol and while there was more than 0.12 percent by weight of alcohol in his blood. Our Supreme Court has held that OCGA § 40-6-391 (a) (4) (driving with more than .12% blood alcohol content) defines a specific act as criminal, and all the State need prove is that the defendant committed the act. Lester v. State, 253 Ga. 235, 237 (2) (320 SE2d 142) (1984). The court went on to hold that no presumption is involved in this oifense. Id. at 238 (2). Hence, any alleged error in the trial court’s failure to give the entire McCann charge was harmless.

4. Appellant contends the trial court erred by denying his motion in limine because there was no affirmative showing that appellant waived his right to an independent blood alcohol test by a person of his own choosing, as required by Steed v. City of Atlanta, 172 Ga. App. 839 (325 SE2d 165) (1984).

This court held recently that an affirmative showing of waiver is not required, and declined to endorse the “novel requirement” set forth in Steed, supra. State v. Dull, 176 Ga. App. 152 (335 SE2d 605), (1985). The State showed by testimony that after being advised of his right to an additional test by a person of his own choosing, appellant stated he wanted no further tests. Thus, this enumeration of error is without merit.

5. Appellant contends the trial court erred by denying his motion in limine because there was an incurable defect in the accusation. This enumeration is without merit.

Appellant did not question the accusation in his motion in limine, but raised this issue in a motion to quash midway through the trial. A demurrer to the indictment, motion to quash or a plea in abatement must be entered before trial. Sheffield v. State, 235 Ga. 507 (1) (220 SE2d 265) (1975).

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Lewis v. State
451 S.E.2d 116 (Court of Appeals of Georgia, 1994)
Coney v. State
401 S.E.2d 304 (Court of Appeals of Georgia, 1991)
Harbin v. State
387 S.E.2d 367 (Court of Appeals of Georgia, 1989)
Williamson v. State
372 S.E.2d 685 (Court of Appeals of Georgia, 1988)
Daugherty v. State
356 S.E.2d 902 (Court of Appeals of Georgia, 1987)
Conley v. State
352 S.E.2d 394 (Court of Appeals of Georgia, 1986)

Cite This Page — Counsel Stack

Bluebook (online)
337 S.E.2d 378, 176 Ga. App. 719, 1985 Ga. App. LEXIS 2930, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hudgins-v-state-gactapp-1985.