Kuptz v. State

345 S.E.2d 670, 179 Ga. App. 150, 1986 Ga. App. LEXIS 1832
CourtCourt of Appeals of Georgia
DecidedMay 21, 1986
Docket71770
StatusPublished
Cited by20 cases

This text of 345 S.E.2d 670 (Kuptz 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
Kuptz v. State, 345 S.E.2d 670, 179 Ga. App. 150, 1986 Ga. App. LEXIS 1832 (Ga. Ct. App. 1986).

Opinions

Benham, Judge.

After a jury trial, appellant was convicted of driving under the influence. He appeals the conviction, raising a forest of errors numbering 24 enumerations, with essentially 15 remaining after defo- liation.

1. In his 1st, 2nd, and 4th enumerations, appellant challenges the jury charge as being burden-shifting and as insinuating guilt. However, the specific grounds appellant raises on appeal were not raised at trial when the trial court allowed exceptions to the charge. Since appellant failed to preserve the specific grounds for appeal, we need not address them. Scott v. State, 250 Ga. 195 (lc) (297 SE2d 18) (1982).

2. In his 3rd enumeration of error, appellant claims it is constitutionally impermissible to use OCGA § 40-6-392 in a DUI prosecution. Inasmuch as this appeal was transferred from the Supreme Court to this court without comment, the constitutional challenges have been found to be without merit. George v. State, 175 Ga. App. 229 (1) (333 SE2d 141) (1985). See also McCann v. State, 167 Ga. App. 368 (1) (306 SE2d 681) (1983).

3. Appellant’s 5th enumeration of error seeks to challenge remarks made by the trial court to the jury panel from which appellant’s jury was selected. Since the trial court’s allegedly detrimental discourse was not taken down by a court reporter and incorporated into the transcript or otherwise made a part of the record in this case, this court has nothing to review. Battle v. State, 178 Ga. App. 655, (344 SE2d 477) (1986); West v. State, 120 Ga. App. 390 (3) (170 SE2d 698) (1969).

4. The accusation filed against appellant was couched in the dis[151]*151junctive: appellant was charged with driving a motor vehicle while under the influence of alcohol or drugs or driving while there was .12 percent or more by weight of alcohol in his blood, in violation of OCGA § 40-6-391 (a) (1) or (a) (4). In his next two enumerations, appellant claims the charges against him were inconsistent and duplicitous and that the State was required to prosecute him for only one crime or the other. Appellant’s assertion that he was prosecuted for two separate offenses is incorrect; OCGA § 40-6-391 establishes one crime, driving under the influence, and subsections (a) (1) and (a) (4) merely set out two different methods of proving that same crime. Hogan v. State, 178 Ga. App. 534 (343 SE2d 770) (1986). Appellant’s situation does not provide a basis for reversal. Furthermore, the trial court did not err in giving the jury the option of merely finding appellant guilty or not guilty of driving under the influence. Since there was evidence to support a verdict of guilty under either OCGA § 40-6-391 (a) (1) or § 40-6-391 (a) (4), the jury was not required to disclose the subsection on which it based its verdict. See Deshazier v. State, 155 Ga. App. 526 (2) (271 SE2d 664) (1980).

5. Appellant next complains that his motion to dismiss the DUI charge should have been granted since there was no probable cause to arrest him for driving under the influence. There is no merit to this contention, since the arresting officer had made observations sufficient to justify the arrest. Griggs v. State, 167 Ga. App. 581 (1) (307 SE2d 75) (1983).

6. On redirect examination of a witness, the State introduced a photograph of appellant taken shortly after his arrest, which photo was admitted into evidence. Appellant now objects to the admission of the photograph, claiming that it was unrelated to the witness’ cross-examination. Appellant waived his right to assert this specific ground at trial since, when the trial court asked for his objection to the exhibit, appellant replied, “If he can affirmatively say he took it, I have no objection.” Wilson v. State, 145 Ga. App. 315, 322 (244 SE2d 355) (1978).

7. Appellant’s next two enumerations challenge the phrasing of two questions posed by the State’s attorney to appellant on cross-examination. We see no error in the trial court’s allowing the questions to be asked, since they fall within the wide latitude given to an attorney who is cross-examining a witness.

8. Appellant next complains that the trial court discredited one of his witnesses and erred in refusing to qualify him as an expert on the Intoximeter 3000. It is well established that qualifying a witness as an expert is within the trial court’s discretion, to be reversed only if that discretion is abused. Hicks v. State, 157 Ga. App. 79 (2) (276 SE2d 129) (1981). In light of the fact that the witness’ knowledge of the machine was obtained through study of the Intoximeter 3000 [152]*152materials for two hours prior to the trial, we find no abuse by the trial court in rejecting the witness as an expert on the machine. Our review of the record reveals no evidence of the trial court’s having discredited the witness’ testimony or appellant’s primary defense.

9. Appellant filed a pre-trial motion seeking access to an Intoximeter 3000 for the purpose of proving that the reading he received from the machine was erroneous in light of his medical history. The trial court denied the motion and appellant claims error, arguing on appeal that his Sixth Amendment right to confront witnesses was thereby violated.

Appellant has cited no cases and we have not found any that apply the Sixth Amendment right of confrontation to machines. “Confrontation in a criminal trial really means the right to ask questions and secure answers from the witness confronted.” Lingerfelt v. State, 235 Ga. 139, 140 (218 SE2d 752) (1975). Moreover, if appellant had been tested on the Intoximeter 3000 on or after October 3, 1984, the date of his motion, the testing would not prove that the machine gave an inaccurate reading for him on July 21, 1984, since the original test conditions, including appellant’s own physical condition, could not have been duplicated. The trial court did not err in denying the motion.

10. Appellant argues that the Intoximeter 3000 test results should have been excluded because the State failed to follow its own procedures for servicing the machine. The record indicates that the machine was to be tested and serviced every three months; that it was tested and serviced on June 6, 1984; that appellant was tested on July 21,1984; and that the machine was tested and serviced again on October 26, 1984. Since three months had not elapsed between the time of the first test and appellant’s test, there was no error in the trial court’s refusal to exclude the test results, to acquit appellant, or to charge the jury regarding the State’s compliance with the testing rules.

11. Appellant claims that the trial court’s statement to the effect that the Intoximeter 3000 is the breath-analyzing machine authorized for use and used by the State of Georgia for such testing was unfairly prejudicial to appellant as directing the jury to find that the machine was accurate. We find no merit in this contention; the statement, made during argument on an objection, cannot be said to have had such an effect on the jury as to constitute reversible error.

12.

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Bluebook (online)
345 S.E.2d 670, 179 Ga. App. 150, 1986 Ga. App. LEXIS 1832, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kuptz-v-state-gactapp-1986.