On Mаrch 5, 1992, Tim Clapsaddle, appellant, was tried and convicted of driving under the influence of аlcohol, making him a less *841 safe driver, and driving under the influence of alcohol with an unlawful blood аlcohol level of .10 or more, both in violation of OCGA § 40-6-391. After Clapsaddle’s motion for new trial wаs denied, he appealed his conviction.
1. In his first enumeration of error, Clapsaddle аsserts that the trial court erred in admitting into evidence, over his objection, the result of the intoximeter test. Clapsaddle objected to the admissibility of the result on the ground that he was not аdvised of his implied consent rights, at the time of his arrest, pursuant to OCGA § 40-6-392 (a) (3) and (4).
OCGA § 40-6-392 (a) sets forth guidelines for thе admissibility of evidence of the amount of alcohol or drug in a person’s bodily fluids, as determinеd by a chemical analysis of the person’s bodily fluids. Subparagraph (a) (3) provides that “[t]he person tested may have a physician ... of his own choosing administer a chemical test or tests in addition to any administered at the direction of a law enforcement officer.” OCGA § 40-6-392 (а) (4) provides, in pertinent part, that “[t]he arresting officer at the time of arrest shall advise the person arrested of his rights to a chemical test or tests according to this Code section.”
The Georgia Supreme Court determined in
Perano v. State,
In Perano, supra, the Suprеme Court was faced with answering a certified question regarding whether, under all circumstancеs, it was necessary to inform the defendant of his implied consent rights precisely at the point of physical arrest. The court concluded, “[u]nder ordinary circumstances, where this adviсe is not given at the time of arrest, or at a time as close in proximity to the instant of arrest as the circumstances of the individual case might warrant, the results of the state-administered test will not be admissible at trial to show that the accused was driving under the influence of alcohol or drugs.” Perano, supra at 708. The court did recognize limited situations “where advising the accused at the mоment of physical arrest would not enable the accused to make an intelligent choice concerning the state’s request and his right to undergo an independent test.” Id. at 707.
The circumstances of Clapsaddle’s arrest make it abundantly clear that he should have been аdvised of his implied consent rights *842 at the time of his arrest, rather than one hour later. Hardman made a traffic stop of Clapsaddle’s vehicle for Clapsaddle’s failure to dim his bright headlights. Hardman detected an odor of alcoholic beverage about Clapsaddle and rеquested an alco-sensor test. Upon testing positive for alcohol, Hardman arrestеd Clapsaddle for the offense of driving under the influence of alcohol and placed him in the back seat of his patrol car. Hardman testified that he did not observe Clapsaddle violate any other traffic law other than failure to dim his headlights. Furthermore, Hardman testified thаt Clapsaddle was cooperative and coherent.
“There is no indication that [Clаpsaddle] was too intoxicated to understand the warnings, compare
Rogers v. State,
2. In his second enumeration of error, Clapsaddle contends that the triаl court erred in allowing Hardman to testify as to his opinion that Clapsaddle was under the influence of alcohol to the extent that it was less safe for him to drive. Clapsaddle argues that Hardman’s opinion was not supported by a proper evidentiary foundation and, therefore, it should not have been allowed. The foundation for Hard-man’s opinion was his experience dealing with and testing individuals who had consumed quantities of alcohol, as well as his obsеrvations of Clapsaddle. This evidence was admissible. See OCGA § 24-9-65;
Gilbert v. State,
Judgment reversed.