At the trial the evidence showed that at approximately 11:20 p.m. on May 19, 1994, appellant, while driving a Porsche north on Riverside Drive in north Fulton County, missed an almost 90-degree curve to the right, crossed both lanes of traffic, hit the guardrail head on, passed under the rail, and plunged some 110 feet down *627 an embankment into some woods. The Porsche left approximately 60 feet of parallel straight skid marks, which indicated that the car slid past the curve without any turning and straight into the guardrail at a right angle.
Appellant ended up in the front yard of Mr. and Mrs. D. B. Plymale. When they heard the crash, they immediately called 911 because, from long experience, they knew someone had wrecked on the severe curve above their house. They went outside and found appellant coming from the woods. While visibly shaken, appellant answered their questions coherently, rationally, and intelligibly. From observing appellant, Mr. Plymale formed the opinion that appellant had been drinking because of appellant’s slurred speech, unsteadiness on his feet, and appearance.
Officer R. S. Jamison, Fulton County Police Department, arrived on the scene within minutes after the call, checked the evidence on the roadway, and came down the driveway where he found appellant. Appellant had a minor laceration on his forehead, denied further injury except for a sprain to his right elbow, and refused medical attention. Jamison made a preliminary accident investigation to determine what had happened. Appellant admitted to having been driving but did not state when or how much he had drunk. Appellant stated that the accident occurred when he lost control of the car while attempting to avoid colliding with a car fish-tailing in front of him.
Jamison found no evidence of swerving or other evasive action by appellant and formed the opinion that appellant had been driving too fast to negotiate the bad curve. Appellant produced only a Kentucky driver’s license and no proof of insurance. He had been a resident of Georgia for about two months.
Observing a fairly strong odor of alcohol, very slurred speech, unsteady gait and balance, and glassy, watery bloodshot eyes, Officer Jamison asked appellant if he would voluntarily submit to the standardized field sobriety tests. From his training and certification, Jamison properly instructed, demonstrated, described, and conducted appellant through the alphabet recitation, one-leg stand, heel and toe, and horizontal gaze nystagmus tests. Appellant scored the maximum that would indicate alcohol impairment.
While Jamison conducted these tests, Corporal R. D. Nable of the DUI Task Force arrived and observed the tests being conducted. As a result of appellant’s poor performance on the tests, he was asked to voluntarily submit to the administering of an alco-sensor test by Nable who had been trained and certified in conducting such tests. He testified that the alco-sensor design had been approved for use in screening for alcohol consumption by the Division of Forensic Sciences (“DFS”) for the GBI and that his training to use the device had *628 also been approved by DFS.
In describing the alco-sensor Jamison stated that it had “a little digital readout,” but he did not indicate any reading or state that appellant failed the test; he did indicate that the test result indicated positive for alcohol consumption. Nable described the machine as having a readout that is “numerical,” but he did not state any reading or indicate that appellant failed the test; he stated that the test showed positive for alcohol consumption.
Both officers stated that based upon their training, experience, and observation of appellant that his conduct, appearance, and speech as well as the test results indicated that appellant had consumed sufficient alcohol to render him less safe to operate a motor vehicle. Appellant was then arrested. At no time prior to appellant’s arrest was he advised of his rights under
Miranda v. Arizona,
1. Appellant’s first enumeration of error contends that the trial court erred in admitting evidence of the alco-sensor test where the proper foundation had not been laid and where the trial court denied appellant’s motion for mistrial or curative instructions.
Turrentine v. State,
Where the arresting officer testifies that the subject “failed” the alco-sensor test, this indicates a conclusion of law and fact that the blood alcohol level meets the statutory minimum for conviction. Thus, under
Channell v. State,
In
Turrentine v. State,
“This court has recognized that an alco-sensor test is not evidence of the amount of alcohol in a person’s blood, but is rather a screening device to determine whether there is probable cause that a defendant is driving under the influence of alcohol. [Cits.] Although
Ronskowsky v. State,
[supra], affirmed the admission of the results of an alco-sensor test where the State introduced a document certifying the device had been approved by the GBI’s Division of Forensic Services, this does not mean its measurement of the amount of alcohol percentage was permitted.
Ronskowsky
was based on
Turrentine,
supra, which distinguished between the alco-sensor results, which are used to alert the officer to the presence of alcohol, and the intoximeter test, which is used to gauge the amount of alcohol. The officer in this case was permitted to testify that the test showed the presence of alcohol.” (Emphasis omitted.)
Mendoza v. State,
No foundation was required in
Hunter v. State,
We find that a proper foundation for the testimony of the officer regarding the alco-sensor test had been laid by the testimony of the officer administering the test that from his training and experience he knew that the DFS of the GBI had approved the design of the alcosensor for use in detecting the presence or absence of alcohol or drugs in the body system of a person. Therefore, the trial court did not err in admitting the testimony, denying the motion for mistrial and denying curative instructions.
Neither Officer Jamison nor Corporal Nable testified as to a numerical quantity of alcohol in appellant’s blood or that he had failed the test which would imply the blood alcohol level. Instead they testified only that appellant showed positive for the presence of alcohol in his body. Thus, there existed no prejudice within the meaning of
Whiteley v. State,
2. The trial court’s refusal to allow the defense expert to remain in the courtroom to assist defense counsel during the State’s case and to later testify was assigned as error. The court explored with defense counsel the various reasons urged for the need for the assistance of the expert and what he would testify regarding; since the expert had been retained only 24 hours prior to trial and there were no eyewitnesses and all the investigation facts were contained in the police reports, the court in the exercise of its sound discretion excluded the defense expert from the courtroom during the presentation of the State’s witnesses over objection of the defense.
OCGA § 24-9-61 codified in part the common law rule as to sequestration of witnesses, codifying the rule only as to the witnesses of a party and not as to all witnesses. See Grig. Code 1863, § 3787. This codification created the right in one party to require all the other party’s witnesses be separated and not to communicate until the conclusion of such party’s case in chief. In contrast the common law rule provided that all witnesses for either party be separated and prohibited from communication regarding their testimony.
“The probative purpose here is to prevent one prospective witness from falsely modifying his testimony to meet that of another witness whom he has heard testify. For opposing witnesses, this measure is purely preventive, i.e., it prevents them from contriving a contradiction of the testimony heard. But for witnesses on the same side,
*631
it has additionally a most important advantage, i.e., it reveals discrepancies of detail, where witnesses have agreed on a false story but have failed to prepare on all its details.” Wigmore, A Student’s Textbook of Evidence, Foundation Press (Brooklyn 1935), § 286, p. 287; see also 75 AmJur2d, Trials, §§ 240, 241; accord
Lackey v. State,
As a matter of right a party can invoke the “rule” only as to the witnesses of the opposite party.
Poultryland v. Anderson,
Rooks v. State,
In the broad discretion of the trial court, the court has the power, notwithstanding the statute, to permit or deny a witness to remain in the courtroom to assist counsel; a party may request but cannot demand that the court exercise its discretionary powers in regard to allowing a witness to remain in the courtroom. Id.;
Jarrell v. State,
Counsel for appellant reads too much into the dicta of
Greenway v. State,
For the foregoing reasons, the trial court did not abuse its discretion by excluding the defense expert from the courtroom during the presentation of the State’s case.
3. Appellant’s third enumeration of error is that the trial court erred in failing to direct a verdict on the DUI charge where the verdict was not supported by sufficient credible evidence.
As set forth in the statement of the case, there exists sufficient credible evidence not only to require the denial of the motion for directed verdict but also to support the jury verdict. See
Mendoza v. State,
4. Appellant’s fourth enumeration of error contends that the trial court erred in ruling that appellant was not “in custody” within the meaning of Miranda and in failing to exclude any resulting evidence.
The investigating officer did not stop or detain appellant who had wrecked his car, had refused medical attention, and who had not requested to call anyone so that he could leave the crash scene. The officers were conducting an accident investigation within the ambit of
Terry v. Ohio,
5. The trial court did not err in denying a curative instruction when in final argument the prosecution asked the jurors to put themselves as passengers in the Porsche while appellant drove with impaired coordination, reflexes, perception approaching a dangerous curve knowing that he had been drinking, had slurred speech and bloodshot glassy eyes that jerked with lateral tracking, and had failed the standardized field sobriety tests as well as being positive on the alco-sensor test. There had been no passengers in fact. This argument merely asked the jurors to view the facts while appellant was operating his vehicle. At no time did the prosecutor invoke the “golden rule” argument regarding placing the jurors in the position of the victim. See
White v. State,
Appellant’s counsel made an objection to this argument which was sustained by the trial court but did not request any specific curative instruction be given nor did he move for a mistrial to preserve the alleged error. Therefore, appellant waived any alleged error by failure to perfect the record so that the trial court had an opportunity to correct an error first brought to the trial court’s attention.
Judgment affirmed.