The appellant was tried and convicted on a 3-count accusation charging him with failure to stop at a stop sign, leaving the scene of an accident without stopping to give information or render aid, and driving under the influence of alcohol. On appeal, he contends (1) *307 that the court erred in admitting the results of a blood-alcohol test administered to him after his arrest; (2) that the court gave an impermissibly burden-shifting charge regarding the presumptions arising from such test results; (3) that his identification by the other driver involved in the accident should have been excluded on the ground that it was tainted by an unduly suggestive post-arrest “showup”; and (4) that the court erred in failing to grant a mistrial based on improper closing argument by the State’s attorney.
Mr. Layton Kinnaird, the driver of the other vehicle involved in the accident, testified that at approximately 6:00 p.m. on June 7, 1983, his vehicle was struck on the passenger side by an automobile which had failed to stop at the end of the exit ramp after exiting an interstate highway. Kinnaird stated that this vehicle accelerated and left the scene after hitting him but that he was nevertheless able to identify its driver as being a white male with long, blond hair.
Based on information provided to them by a tow-truck operator who happened to be in the area, police located the appellant at a convenience store shortly after the accident and, suspecting him of being the hit-and-run driver, charged him with giving a false name to a police officer. The appellant was returned to the accident scene some 15 to 30 minutes later, where he was identified by Mr. Kinnaird as the perpetrator of the collision. He was then charged with D.U.I. and was transported to a hospital for extraction of a blood sample. Analysis of this sample by the State Crime Laboratory revealed his blood-alcohol content to be .21 percent. Held:
1. The appellant objected to the admission of the blood-alcohol test results on the ground that the police did not inform him of his right to an independent chemical analysis at the time of his arrest at the convenience store but instead waited until he had been returned to the scene of the collision, some 15 to 30 minutes later. We find this objection to be without merit.
Under ordinary circumstances, where (the accused) is not advised of his right to an independent chemical analysis pursuant to OCGA § 40-6-392 (a) 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 v. State,
2. The appellant contends that in charging the jury on the presumptions arising from the blood-alcohol test results, as delineated in OCGA § 40-6-392, the trial court was required to give the charge set forth in
McCann v. State,
3. The court was authorized to conclude that the one-on-one showup conducted at the scene of the collision shortly after the appellant’s apprehension was both permissible and reliable, despite the fact that it was, of necessity, suggestive. Accord
Davis v. State,
4. During the trial, the tow-truck driver who had initially identified the appellant to police as being the person who had fled the scene of the collision gave testimony for the State which was inconsistent with other evidence which had been presented by the State in several important regards. During closing argument, the State’s attorney, despite having been instructed by the court not to do so, attempted to argue that the witness may have confused his observations of the collision in question with his observations of other collisions he had presumably witnessed in the past. In response to the appellant’s objection, the trial court immediately rebuked the State’s attorney and instructed the jury to disregard the statement. The court also obtained from the jurors oral assurances that they would be able to follow this instruction. The appellant contends that the court nevertheless erred in denying his subsequent motion for mistrial.
“In passing on a motion for mistrial because of an improper statement of a prosecutor, the trial judge may take such action as in his judgment will prevent harm to the defendant, and a new trial will
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not be granted unless it is clear that such action failed to eliminate the statement from consideration by the jury.”
Watkins v. State,
In the present case, we have no reason to assume that the corrective action taken by the trial court was ineffective to eliminate whatever prejudice might have arisen from the improper argument, and we consequently hold that it was not error to deny the motion for mistrial.
Judgment affirmed.