311 Ga. App. 595
Ga. Ct. App.2011Background
- Avery was stopped for lane failure and charged with per se DUI, failure to maintain lane, and driving with a suspended license.
- The license was suspended by Tennessee; odor of alcohol observed; Avery submitted to implied-consent breath test after arrest.
- Avery took the State's breath test and registered 0.080 on the Intoxilyzer 5000.
- Avery sought suppression and in limine relief arguing failure to accommodate an independent test.
- Probate court convicted Avery of DUI and failure to maintain lane; superior court affirmed; Avery appealed.
- Issue focused on whether the State improperly admitted the Intoxilyzer result due to Avery’s requested independent test and related proceedings.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Avery’s request for additional testing triggered independent-test rights. | Avery sought additional tests; testing should be independent. | Requests for additional testing were not for an independent test. | No independent test requirement; State test admitted. |
| Whether cross-examination about the Intoxilyzer margin of error was improperly restricted. | Cross-examination on margin of error should have been allowed. | Question already answered; ruling harmless. | Harmless error; no reversal. |
| Whether field sobriety tests should be excluded for lack of Miranda warnings before arrest. | Field sobriety tests require Miranda warnings. | No custody or arrest before completion of tests; warnings not required. | No Miranda violation; tests admissible. |
Key Cases Cited
- Ladow v. State, 256 Ga.App. 726 (2002) (independent test rights when request is made; failure to obtain test limits use of State test)
- McGinn v. State, 268 Ga.App. 450 (2004) (independent test right arises from circumstances, not mere semantics)
- State v. Gillaspy, 270 Ga.App. Ill, 112 (2004) (circumstances surrounding request govern whether it's for an independent test)
- Brooks v. State, 285 Ga. App. 624 (2007) (circumstances surrounding a request determine whether it is for an independent test)
- Anderton v. State, 283 Ga.App. 493 (2007) (case on contextual evaluation of requests for independent tests)