Smith v. State, 324 Ga. App. 100

In January 2011 officers observed Karen Smith weave and swing wide while driving, stopped her, smelled alcohol, and observed bloodshot, watery eyes and slurred speech.
Smith performed two of three field sobriety tests poorly, refused to complete a portable breath test, and refused a state-administered blood test after arrest; she later obtained an independent blood test after release that was negative for marijuana but did not exclude alcohol or other drugs.
Smith was charged with DUI (less safe, OCGA § 40-6-391(a)(1)) and related traffic offenses; the State later added and then nolle prossed a drug-related DUI count (§ 40-6-391(a)(4)).
Before trial the State moved in limine to exclude Smith’s post-release blood test showing no marijuana; the court granted that motion and excluded the test as irrelevant to an alcohol-based less-safe DUI charge.
Smith moved to invoke the mandatory sequestration (witness exclusion) rule during a pretrial evidentiary hearing about her alleged rescission of the refusal to take the state blood test; the court denied sequestration, heard testimony with officers present, and later convicted Smith after a bench trial.
On appeal the court reversed the DUI conviction because the trial court erred by refusing to sequester the State’s witnesses during the pretrial evidentiary hearing, but upheld exclusion of the post-release blood test as irrelevant to the alcohol-only charge.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the trial court erred by refusing to sequester State witnesses during a pretrial evidentiary hearing	Smith: sequestration rule applies to all proceedings where witnesses testify; denying it allowed State witnesses to tailor testimony and violated mandatory rule	State: rule not required until trial presentation; hearing did not trigger sequestration; any violation affects credibility not admissibility	Court: Error — sequestration rule applies to pretrial testimony; denial required reversal and new trial
Whether the trial court erred in excluding Smith’s post-release blood test showing no marijuana	Smith: test undermines officers’ assessment that drugs caused impairment and bears on reliability of their observations	State: charge was for alcohol-only less-safe DUI; negative marijuana test does not disprove alcohol impairment and is irrelevant	Court: No error — post-release test did not shed light on alcohol impairment and exclusion was within trial court’s discretion

Poultryland, Inc. v. Anderson, 200 Ga. 549 (1946) (sequestration rule is mandatory during proffered witness testimony and error can require a new trial)
Blankenship v. State, 258 Ga. 43 (1988) (rule applies when witnesses testify; inapposite to holding that sequestration is limited to non-opening-statement testimony)
Childress v. State, 266 Ga. 425 (1996) (purpose of sequestration is to prevent one witness from being taught another’s testimony)
Johnson v. State, 258 Ga. 856 (1989) (sequestration violations generally go to credibility rather than automatic exclusion)
Allen v. State, 229 Ga. App. 435 (1997) (post-arrest alcohol tests taken many hours later can be irrelevant and properly excluded)