CHANNELL v. THE STATE.
68711
Court of Appeals of Georgia
DECIDED SEPTEMBER 19, 1984.
172 Ga. App. 156 | 322 SE2d 356
BANKE, Presiding Judge.
Thоmas M. Green, David L. Mincey, G. Terrell Davis, for appellees.
BANKE, Presiding Judge.
On appeal from her conviction of driving under the influence of alcohol, the appellant contends that the triаl court erred in allowing into evidence testimony to the effect that she had failed to pass an “alka-sensor” roadside sobriety test administered to her at the scene of her аrrest.
The appellant was detained after her vehicle was observed weaving across the centerline of the roadway during the early morning hours of March 13, 1983. The arresting officеr testified that he could smell a strong odor of alcoholic beverage on the appellant‘s person and breath, that she was unsteady on her feet and that her speech was slurred and hard to understand. The officer was also permitted to testify, over objection, that he administered a roadside sobriety test to the appellant, which she failed to pass. The officer testified on cross-examination that this was an “alka-sensor (sic) field sobriety test.” It does not appear that any other type of blood-alcohol test was аdministered to the appellant.
The appellant‘s objection to the testimony regarding the “alka-sensor” test was based on the State‘s failure to show that the test had been aрproved by the Georgia Department of Public Safety. Although the State‘s attorney informed the court, in response to the objection, that “the Rules and Regulations of the Department of Public Safety, which I have a certified copy of, . . . so designate it as the test that is mandated by the state for on-the-roadside sobriety tests,” no such rules and regulations were introduced into evidence or otherwise made a part of the record.
Testifying in her own behalf, the appellant admitted that she had consumed a few beers on the night in question and that it was possible she had crossed over the centerline in the manner described by the officer. She maintained, however, that her erratic driving was due not to intoxication but to the fact that she was suffering from a painful uterus infection for which she had taken a pain medication. Held:
Because the required foundation wаs not laid in the case before us, we hold that the trial court erred in admitting the officer‘s testimony that the appellant “failed” the roadside sobriety test which he had administered to her. This court‘s decision in Hunter v. State, 143 Ga. App. 541, 543 (5) (239 SE2d 212) (1977), is not authority for a contrary result. In the first place, the initial screening test at issue in that case was merely a “balloon” test designed to confirm the presence of alcohol in the driver‘s body systems rather than to test for sobriety. In the second place, it does not appear that any rules regarding the administration of screening tests had been рromulgated by the Department of Public Safety at the time that decision was rendered. Finally, the admission of the screening test results in that case was merely cumulative of the results of an intоximeter test which had been administered to the defendant, showing his blood-alcohol content to be 0.16 percent.
Judgment reversed. McMurray, C. J., Quillian, P. J., Birdsong, Carley, Sognier, and Benham, JJ., concur. Dеen, P. J., and Pope, J., dissent.
POPE, Judge, dissenting.
I respectfully dissent. Appellant‘s two enumerations on appeal assign error to the trial court‘s admitting the testimony of the arresting officer as to the results оf an initial alcohol screening test. The basis of these enumerations is appellant‘s contention that the breath-testing device utilized by the arresting officer is not one which has
The testing device in question (an “alka-sensor“) is, indeed, not one of those listed by the Department of Public Safety as approved for breath tests to determine the amount of alcohol in a person‘s blood. See Rules of the Department of Public Safety, Rule 570-9-.06 (5). It is important to note, however, that the subject testing device was not utilized for that purpose. Rather, the test was administered at roadside where the officer had stopped appellant and was used by the officer, in conjunction with other observations, in making his determination оf probable cause to arrest appellant for driving while intoxicated. Nevertheless, initial alcohol screening devices such as the one in this case must also be apрroved by the Director of the Division of Forensic Sciences. Rules of the Department of Public Safety, Rule 570-9-.06 (3). Under this circumstance, I am compelled to agree with the majority‘s cоnclusion that the absence of proof of compliance with such rule renders inadmissible the results of such a test. See State v. Johnston, 249 Ga. 413, 415 (291 SE2d 543) (1982).
I would further note that the jury in this case was not clearly informed of the purpose of the initial alcohol screening test given to appellant. The State was permitted to ask the arresting officer “whether or not the defendant, Lynn Seagravеs Channell, successfully passed the roadside sobriety test.” The officer responded, “The test was not passed. It was failed.” The officer then testified that, based upon his observations оf appellant at roadside and while in his custody on the night in question, he believed “that she was definitely under the influence of alcohol, appeared to be very drunk, and stated that she had been drinking beer that night.” Although the State did not attempt to rely on the screening test as a measure of appellant‘s degree of intoxication, this court has found that “the public is gеnerally aware of the standard procedures attendant to arrest for [D.U.I.], i.e., that chemical tests are administered by law enforcement authorities to ascertain the suspеct‘s level of intoxication.” Wessels v. State, 169 Ga. App. 246, 247 (312 SE2d 361) (1983). Under the circumstances in this case, it is possible that the jury may have been misled as to the legal effect of the screening test, mistaking it for the chemical test required by law,
However, I do not view the admission of the objectionable testimony in this case as requiring a reversal of appellant‘s conviction. In addition to the testimony of thе arresting officer cited by the majority, the officer also testified that he noticed several empty beer cans in the back seat of appellant‘s car. Appellant hеrself testified that she had had a few beers, taken in conjunction with pain medication, on the night in question. When asked if she recognized that she was “under the influence” shortly before she was stopped, she testified: “Well, I was really more in pain than I was, you know, feeling high.” Clearly, the evidence of appellant‘s guilt presented at trial was overwhelming. I believe it highly probable that the error in admitting the objectionable testimony did not contribute to the judgment. See generally Johnson v. State, 238 Ga. 59 (230 SE2d 869) (1976). Accordingly, I would affirm the judgment of the trial court. See Collins v. State, 154 Ga. App. 651 (4, 6) (269 SE2d 509) (1980); Garrett v. State, 146 Ga. App. 610 (2) (247 SE2d 136) (1978). See also Hawkins v. State, 146 Ga. App. 312 (3) (246 SE2d 343) (1978).
I am authorized to state that Presiding Judgе Deen joins in this dissent.