Patricia Ann Church was charged with driving under the influence to the extent that it was less safe for her to drive under OCGA § 40-6-391 (a) (1), рhysically controlling a moving vehicle while her blood-alcohol concentration was in excess of that allowed under OCGA § 40-6-391 (a) (4), and failing to maintain her lane in violation of OCGA § 40-6-48. She was convicted of driving under thе influence to the extent that it was less safe for her to drive and appeals.
Evidence at trial wаs that at about 11:15 p.m. on March 25, 1992, Officer Clark stopped Church for failing to stay in her lane of traffic. Officer Clark observed the vehicle Church was driving cross over the lane lines several times and observed her brаke in a jerking manner. Clark suspected that Church was driving under the influence, turned on his video camera and рulled her over; After stopping her, Officer Clark smelled alcohol and requested that she perform fiеld sobriety tests, which she failed. The aleo-sensor test he administered indicated that she had been drinking. Officer Clark administered a second alcosensor test, which again indicated that she had been drinking. Church admitted that she had consumed some alcohol. Officer Clark placed her under arrest, handcuffed her аnd read her the implied consent card. Church then indicated that she would take the breath test. Officer Clаrk recalled that Church did not indicate that she wanted an additional test of her own.
Officer Merrifield testified that he administered the intoximeter breath test on Church at approximately 11:46 that evening. He stated thаt the test registered .13 percent.
Church also testified. She stated that she had consumed one-and-one-half glasses of wine on the evening in question.
1. In her first enumeration of error, Church contends that the trial court erred in failing to exclude the results of the State-administered breath test on the grounds that she was not afforded the opportunity to have an independent chemical test despite her request pursuant to OCGA § 40-6-392 (a) (3).
In addition to Officer Clark’s testimony regarding the sequence of events, the videotape he madе of the incident was introduced and is
Officer Clark testified that until he viewed the videotape he did not reсall Church mentioning an independent test. The trial court denied Church’s motion to exclude the results of the intoximeter test on the basis that Church had requested the test prior to the reading of the implied consent warnings, and thus prior to her right to an additional test having attached.
Church contends that her questions regarding a blоod test constituted a request for an independent test under OCGA § 40-6-392 (a) (3). We disagree. Church, who had not been read the implied consent rights, was simply clarifying the procedure which would be followed if she was arrested. Her response after being told that she was entitled to an independent test is consistent with our interprеtation that her statement was not a request. The conflict “having been resolved in favor of the Statе, that is, the trial court having concluded that defendant did not effectively communicate to the officers any desire for an additional test, the trial court did not err in denying defendant’s motion to suppress the evidence.” (Citation omitted.)
Magher v. State,
2. In her second enumeration of error, Church argues that the trial court erred in allowing Officer Clark to testify as to the ultimate issue of fact before the jury, that in his opinion Church was a less safe driver. Shе contends this was an inadmissible legal conclusion and that in so testifying, Officer Clark invaded the jury’s province. Churсh’s arguments in this regard were decided adversely to her in
Chance v. State,
3. Thirdly, Church contends that the trial court erred in its failure tо grant her motion for directed verdict since the State proved only her breath-alcohol content, not her blood-alcohol content. Pretermitting issues arising out of the fact that Church was acquitted on charges under OCGA § 40-6-391 (a) (4), we find her arguments in
4. In her final enumеration, Church contends that the trial court erred in sentencing her to a misdemeanor of a high and aggrаvated nature in that it erroneously allowed into evidence a Department of Public Safety printout to prove her prior DUI convictions. Specifically, citing
Baldasar v. Illinois,
There is no contention that Church was sentenced to serve time in conjunction with the previous convictions. Again, based on
Dotson v. State,
Judgment affirmed.