State v. Nolen

508 S.E.2d 733, 234 Ga. App. 291, 98 Fulton County D. Rep. 3440, 1998 WL 568699, 1998 Ga. App. LEXIS 1215, 98 FCDR 3440

• Court: Court of Appeals of Georgia
• Decided: September 9, 1998
• Docket: A98A1513
• Status: Published

Opinions

Ruffin, Judge.

The State directly appeals from the trial court’s order granting Deforest Nolen’s motion in limine to suppress the results from a chemical sobriety test on the grounds that the officer did not read verbatim the implied consent notice mandated by OCGA § 40-5-67.1. For reasons which follow, we reverse.

The record shows that Nolen was stopped by a DeKalb County police officer on October 12, 1997, for failing to maintain his vehicle in its lane of travel. After arresting Nolen for driving under the influence, the officer read the implied consent warning found in OCGA § 40-5-67.1 (b). The officer read the warning verbatim except for the omission of the word “and” in the next to the last sentence of the warning between the clause “at your own expense” and the clause “from qualified personnel of your own choosing.” The officer should have stated, “After first submitting to the required state tests, you are entitled to additional chemical tests of your blood, breath, urine, or other bodily substances at your own expense and from qualified personnel of your own choosing.” (Emphasis supplied.) OCGA § 40-5-67.1 (b) (2). Although the trial court found that the omission of the word “and” did not alter the meaning of the sentence, it granted Nolen’s motion in limine on March 12, 1998, based upon this Court’s decisions in State v. Fielding, 229 Ga. App. 675 (494 SE2d 561) (1997) and State v. Halstead, 230 Ga. App. 208 (496 SE2d 279) (1998). In Fielding, we held that a 1995 amendment to OCGA § 40-5-67.1 required police officers to read the implied consent warning “exactly as set forth” in the Code section. Fielding, supra at 677-679.

On appeal, the State contends that the amendment to OCGA § 40-5-67.1, effective March 27, 1998, requires this Court to reverse the trial court’s order suppressing the results of the chemical sobriety test. Ga. L. 1998, Act 573 (HB 1378). This amendment 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.” OCGA § 40-5-67.1 (b).

This Court is obligated to apply the law as it exists at the time its opinion is rendered. State v. Martin, 266 Ga. 244, 245 (1) (466 ) (1996). Moreover, “where a statute governs only procedure of the courts, including rules of evidence, it is to be given retroactive effect absent an expressed contrary intention. [Cits.]” Polito v. Holland, 258 Ga. 54, 55 (2) (365 SE2d 273) (1988). In Martin, the Supreme Court concluded that a 1995 amendment to OCGA § 40-5-67.1 “modifies the scope of evidence which may be offered in a DUI trial. It does not affect the manner or degree of punishment and does not alter any substantive rights conferred on [the defendant] by law. [Cits.]” Martin, supra at 246 (3). Likewise, the 1998 amendment to the statute governs whether the results of a chemical test of a DUI suspect will be admissible evidence. It does not change any substantive rights of defendants. Thus, we must apply the statute as it now exists to this case.

The amended statute 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.” OCGA § 40-5-67.1 (b). In this case, the officer read the notice to Nolen in its entirety and the substance of the notice was not changed by the omission of the word “and” from the notice. Thus, the officer’s reading of the notice complied with OCGA § 40-5-67.1, as amended.

Nolen contends that ex post facto provisions in the federal and state constitutions prohibit this Court from applying the 1998 amendment to this case. U. S. Const., Art. I, Sec. IX, Par. Ill; Art. I, Sec. I, Par. X, Ga. Const. of 1983. Nolen also contends that the 1998 amendment is unconstitutional because the Legislature exercised “judicial powers in violation of the Georgia Constitution, Art. I, Sec. I, Par. XXIII.” [Sic]¹ We cannot address these issues because “[t]he Supreme Court has exclusive appellate jurisdiction over all cases in which the constitutionality of a statute is called into question. Ga. Const. of 1983, Art. VI, Sec. VI, Par. II (1).” Harper v. State, 213 Ga. App. 611, 612 (1) (445 SE2d 300) (1994).

Nolen requests that we transfer this case to the Supreme Court of Georgia if we determine that constitutional issues are raised which are outside the jurisdiction of this Court. This we cannot do because the constitutionality of the 1998 amendment was neither raised by the parties below nor ruled upon by the trial court.² The Supreme Court of Georgia “does not have exclusive appellate jurisdiction over a case where the constitutional issue asserted on appeal has not been raised in and ruled upon by the trial court. [Cit.]” Atlanta Independent School System v. Lane, 266 Ga. 657, 658 (1) (469 SE2d 22) (1996).

Based upon our conclusion that the 1998 amendment applies retroactively, we reverse the trial court’s decision to exclude evidence of Nolen’s chemical test. Upon the return of the case to the trial court, Nolen may, if he wishes, raise his constitutional challenges to the 1998 amendment and preserve them for any subsequent appeal.

Judgment reversed.

Pope, P. J., concurs. Beasley, J., concurs specially.

1 In the 1983 Constitution, Art. I, Sec. I, Par. XXIII deals with imprisonment for debt. We assume Nolen was attempting to invoke Art. I, Sec. II, Par. II regarding separation of powers which, in the 1945 Constitution, was listed as Art. I, Sec. I, Par. XXIII.

2 The 1998 amendment came into effect after the State filed a notice of appeal from the trial court’s order granting the motion to suppress.