*1 exculpatory. been to show whether the test result
Without evidence the record inculpatory exculpatory, impossible determine would be to a new trial. If the test were con- whether the defendant entitled evidence, exculpatory the defend- yielded ducted and admissible then course, yielded a new trial. Of the test ant should be entitled to incriminating defendant would not be entitled to a new trial sustain the presented because sufficient evidence was at the trial to appropriate solution jury’s guilty verdict. believe problem presented by judg- this case would be to affirm the (with exception rape, ment of the trial court of the sentence for that the defend- majority) set forth Division with direction opportunity afforded a reasonable to have the desired scientific ant be opportunity examination of the evidence conducted and afforded the days obtaining report of to file a motion for new trial within 30 the result. Cooper joins am authorized to state that
Short, Castellow, Castellow, Fowler & Lester M. for Cole, Stines, Attorney, H. Lamar District Charles M. Assistant Attorney, District
A92A1470. BALLEW v.
Sognier, Judge. Chief pled guilty driving Jonathan Ballew under the influence of al- cohol, underage possession by consumption, of alcohol a red light, government manufacturing false identification document. He from suppress. the denial of his motion to transcript guilty plea hearing The reveals that the trial indicated its exercise of discretion to guilty plea Ap- on condition that issue preserved. plying approach the less restrictive interpreting the methods appellants can such conditional that was adopted by this court in 832) (1992), transcript reveals that both and the presented judge agreement to the trial their suppress]
would “be allowed to [denial his] [to though even pleading guilty.” slightest he’s There is not the indica- judge approve, tion that nor is doubt that there upon entered his ac- judge’s reliance ceptance right, suppress. of his the denial of his motion to presence Given counsel’s discussion of this matter in the of the trial judge disap- and the absence of indication that the trial proved, judge tacitly approved we conclude that the trial the condi- propriety tional to and that the on the motion preserved appeal. Accordingly, “we address the is- *2 parties expect sue which all [this court] on the trial level to decide.” (Footnote omitted.) Springsteen, supra. Appellant by denying contends trial court erred his motion police because the failed to honor his for an inde- pendent hearing appel- blood test. Evidence was adduced at the City Buffington lant’s motion that of Gainesville Police Officer Brian stopped appellant witnessing through him drive an intersection after stopping flashing light. without at the red Based on the smell of alco- appellant cup liquid hol around and his filled with a alcohol, the officerbelieved to be the officeradministered an alco-sen- positive, Buffington appellant sor test. The results were arrested running light. Buffington plac- for DUI and ing appellant the red testified that after patrol implied car he read his consent rights Buffington appellant agreed and that to take the State-administered test. appellant making testified he could not remember agreeing expressing comments other test, than to take the con- college scholarship, apologizing cern about his light. Newman, Officer Charles who administered the intoximeter test, testified that did not ask for an additional blood test. The officer at the detention center where was taken several hours after the State test was administered could not remember pellant requesting an additional blood test. Appellant Buffington implied testified that him read his consent rights police “you at the station and that the officer when said have right independent
the test, urinalysis, possible to an test, test which could be a breath a blood urinalysis[,] said, or a I well I’d rather take the blood test or the Appellant
if I could.” testified he also asked Newman “is it get for me to a blood a different test?” after he during fingerprinting pro- taken the State-administered test cess. stated he made the same of the detention officer, center but it was denied. appellant’s stating The trial court motion, denied “[t]he [appellant] [Buffington] statements of to the first officer seem to me given,
to be before the test was before the State-administered test is given, and don’t think that’s sufficient to do whatever he needs to get do to his test. think he would have had to renew that statement after the State’s test. The [detention statement to the officer at the long center] seems to me to be too after the . . incident. . The one then in is what Newman, was said to Officer be. For that rea- request as it could as clear a to me to be not seems son, denying the motion.” I am rule on the conflict apparent police as to whether appellant and the officers testimony between Rather, test. requested an additional
appellant had appellant’s even under legal on a based its and his facts, Buffington premature his version of the sufficiently need not address clear. We to Newman was-not however, law the trial determination, as a matter of because the latter independent by finding that court erred State-adminis- it was made before the premature because test was given. tered test was performed its test before right has the to have
“[T]he a refusal to take the to take a test attaches because If he independent to an a waiver of the test constitutes done, election he make this independent elects to have an test White, State v. rights.” of his informed consent being after informed Accord Norfleet Under events, his lant’s he exercised version implied rights read the consent independent Buffington test when *3 him. no evidence that volunta- See id. We note that there is rily request Compare v. withdrew his for the additional Duffee (361 (1987). State, (1) 239) 247, App. 184 Ga. 248 SE2d
Therefore, since the court did not rule on the conflict the trial request indepen- evidence on the whether an the is vacated and dent trial court’s on is of the this case remanded to the trial application opin- issues an with this factual and the law consistent ion. J.,
Judgment Pope, P. Carley, vacated and case remanded. J., Johnson, JJ., Beasley, Cooper McMurray, and concur. P. Bird- J., song, Andrews, J., P. and Presiding Judge, dissenting.
McMurray, I respectfully expressly approve dissent as the trial court did not required is guilty pleas defendant’s to enter the conditional as (1) 824). State, (410 App. Mims v. 201 Ga. 278 upon re- guilty pleas have no to condition “[Defendants issues, the serving appeal the and defendants reserve court, in its appeal of such issues when the trial the exercise of discre- tion, part plea. There- negotiated allows a defendant to do so as fore, expressly approves the the reservation unless trial court condition, the issue is not accepts issue and with that plea waive defenses preserved; and an unconditional will 634 State, objections (Massey v. App. 137 Ga.
117)) except plea issue of voluntarily whether such was by appellant accepted following proper inquiry by made State, (1), 279, court.” Mims v. arraignment, At defendant appeal made a to the issue of the denial of his motion to and the State an- nounced that such a appeal reservation of a to was plea negotiations. Defense counsel then stated that defendant “under- stands appeal he’s unsuccessful today that the sentence is his sentence.” The respond to defendant’s re- quest to guilty pleas, enter the conditional general inquiry but made nature of guilty pleas. defendant’s The trial accepted court then and sentenced defend- ant. These circumstances do not reveal that expressly, tacitly, or even approved to enter the conditional guilty pleas. is responsibility of the trial court to decide whether
“[I]t exercise its discretion and condition that pellate preserved.” issues are
(1), 279, supra. In judice, the case sub majority holds that trial response court’s silence in to defendant’s conditional was an exercise of discretion and an guilty pleas. Further, I do not. my majority’s view that reli- Springsteen ance on v.
(1992), misplaced.
In Springsteen duty expressly satisfied its approve guilty pleas by dis- cussing “ with counsel, counsel and stating to defense you’re ‘If satisfied such a reservation of a right [that ” appropriate], I’m However, satisfied.’ holding expressly was limited to the circumstances of Specifically, that case. this Court stated holding its is based on “the obvious fact that plea conditioned on the the court’s search and seizure ruling and that agreed the court procedure to such appears on fact, the record.” In expressly this Court recognized Mims and stated that precisely “courts should express on the *4 approval record an of the reservation of issues when exercising the discretion to plea.” my view, in response court’s silence to defend- ant’s did not meet the express approval requirement of i.e., silence does not amount to an exercise of discretion nor (either
does it amount express implied) or of a condi- plea agreement. tional I would affirm judgment of the trial court since guilt admission of constitutes and since defendant does of all known and unknown defenses waiver pleas. challenge guilty nature of his (1), See Mims in joins to state Andrews this dissent. am authorized Law, George III, appellant. Whitmer & H. Law Jackson, Solicitor, Lydia S.
A92A1510. PITTS v.
Carley, Presiding Judge. was found of more than possessing one ounce of marijuana, two counts manufacturing marijuana, possession of of by firearm a convicted felon. He judgments from the of con- by victions and sentences entered the trial court on the findings of guilt. Relying upon rule, equal access enumerates as
error the denial of his acquittal. motion for directed verdicts of
The evidence shows that law enforcement officers found more marijuana than one ounce of seeds under the driver’s seat of a truck owned and driven discovery, At the time of occupant lant was the sole subsequently of truck. Officers discov- 2,000 ered marijuana seedlings about in an old tobacco barn behind plants residence and several hundred mature marijuana pine among nearby trees on Although land. title to the land was not in appellant, there was in question evidence that the areas were a of his farm. rule, [‘equal context,
“The applies as it the automobile access’] merely showing person persons that evidence that a or other than the owner or driver of the equal automobile had access to contraband will, may found depending upon strength automobile presumption overcome the the contraband was the exclusive State, Castillo v. of the owner or driver. [Cits.]” (2) (305 821-822 Evidence merely parked the truck in another individual’s driveway does not anyone show that that other individual or else had “equal access” to the truck and reasonable does not raise “a doubt rebutting presumption possession. origi- (Emphasis [Cit.]” nal.) (2) (392 Moon v. assuming prior pres-
Even that evidence of another individual’s mere presumption ence the truck have been sufficient to rebut the