Holcomb v. StateHolcomb v. State
- Reporters:
- , , ,
- Before:
- McMurray
Defendant was tried before a jury and found guilty of alternative counts of driving under the influence of alcohol. The counts were merged for sentencing, so that defendant was “[sentenced on Count II only.” His motion for new trial was denied and this appeal followed. Held:
1. In his seventh enumeration, defendant contends the trial court erred in denying his motion to suppress the results of the State-administered breath test. He argues the implied consent warning he received is deficient because it did not advise him that he had the right to an independent chemical test by a “qualified person of his own choosing.” We agree.
The transcript of the hearing on defendant’s motion to suppress shows that defendant stopped his automobile at a roadside check for driver’s licenses and insurance papers. Officer J. W. Greer of the College Park police spoke with defendant and detected alcohol on his breath. When defendant exited his car, he was “unsteady on his feet, kind of like he was lost. His eyes were bloodshot.” Defendant failed field sobriety tests for finger dexterity and balance. A preliminary breath test was positive for the presence of alcohol. Defendant was placed under arrest and read an implied consent warning that informed defendant, in part: “If you submit to testing and the results indicate a blood alcohol level of 0.10 grams or more, your driver’s license may be suspended for a minimum period of one year. After submitting to the required testing you are entitled to an additional chemical test at your own expense. Will you submit to the State-administered chemical test of your breath under the Implied Consent Law?” Defendant was transported to the College Park police station, where he submitted to a breath test. After that test was given, defendant never asked for an additional test of his blood, breath, or urine. If defendant had requested an independent test, he would have had a “choice of Grady or South Fulton [hospitals].” Defendant testified that, while he was at the roadside, he twice demanded a blood test when Officer Greer asked him to take the preliminary breath test. However, he affirmed that he never demanded any additional testing after taking the State test at the police station.
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2. In his first enumeration, defendant contends the trial court erred in allowing Officer Greer to testify that defendant was a less safe driver. He argues this opinion testimony was without adequate foundation because it was “based solely upon the result of [an] alcosensor test. . . .”
At trial, Officer Greer testified that defendant was given a roadside test with a hand-held alco-sensor device, and that the result “read positive” for the presence of alcohol. Over defendant’s objection to “any interpretation . . . about what [that positive result] may have indicated,” Officer Greer was permitted to testify as follows: “From my dealings in the past... it would lead me to believe that he was a less safe driver, but I’m not going to base my opinions on that one machine.” Officer Greer explained that any opinion he formed about defendant’s capabilities was made in conjunction, with defendant’s observed inability to perform the field sobriety finger dexterity test and balance test.
“A police officer may give opinion testimony as to the state of sobriety of a DUI suspect and whether [that person] was under the influence to the extent it made him less safe to drive. [Cits.]”
Lewis v. State,
214 Ga. App. 830, 831 (1), 832 (449 SE2d 535). In the case sub judice, “[t]he foundation for [Officer Greer’s] opinion was his experience dealing with and testing individuals who had consumed quanti
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ties of alcohol, as well as his observations of [defendant]. This evidence was admissible [over defendant’s foundation objection]. See
3. The trial court erroneously charged the substance of
“ ‘Having given the erroneous instruction, it could only be corrected by the judge expressly withdrawing it and instructing the jury to disregard it. [Where] this [is] not done, harmful error [results] therefrom.’ Salisbury v. State, 221 Ga. 718 (2)[, 719] (146 SE2d 776) (1966); [Cits.]” Murray v. State, 254 Ga. 351, 352 (2), 353 (329 SE2d 485). In the case sub judice, the attempted correction using “shall be inferred” in lieu of “presumed” was itself burden shifting and therefore erroneous. It “ ‘is just as mandatory as an instruction that “the law presumes fact x from fact y.” In either event, the jury is told that a finding of fact. . . legally follows from proof of (another) fact. . . .’ (Emphasis omitted.) Isaacs v. State, 259 Ga. 717, 734 (35b), 735 [(386 SE2d 316)].” Ellerbee v. State, 215 Ga. App. 102, 105, supra.
We cannot say this erroneous instruction was harmless. The State is not required to prove a defendant’s alcohol concentration to establish that he was a less safe driver under
4. Although the general grounds are not enumerated, the circumstantial evidence that defendant was a less safe driver is sufficient under the standard of
Jackson u. Virginia,
443 U. S. 307, supra, to authorize the jury’s verdict that defendant is guilty, beyond a reasonable doubt, of violating
5. Defendant’s remaining enumerations have been considered and are found to be without merit or unlikely to recur upon retrial.
Judgment reversed as to Count II; judgment reversed and case remanded for new trial as to Count I.
Andrews and Blackburn, JJ., concur.