A lаw enforcement officer initially approached appellant to question him about driving in excess of the speed limit. After discussion and оbservation, however, the officer began to suspect that appellant also had been driving under the influence. The officer requestеd that appellant perform three field sobriety tests and appellant complied. When the officer requested that appellant submit to an alco-sensor test, however, appellant refused. Appellant was then arrested for driving under the influence and the officer gаve him the warnings mandated under the Implied Consent Law. Thereafter, the officer requested that appellant take a State-administered brеath test, but appellant refused.
Appellant filed a pre-trial motion to suppress evidence of his post-arrest refusal to take the State-administered breath test, con *570 tending that the Implied Consent Law is unconstitutional. The trial court denied the motion and, at the ensuing jury trial, appellant was found guilty of driving under the influence. He appeals from the judgment of conviction and sentence entered on the jury’s guilty verdict.
1. Appellant enumerates as error the denial of his motion to suppress.
OCGA § 40-5-67.1 (g) provides that, if requested, an administrative hearing is to be afforded to onе whose driver’s license has been suspended by the Department of Public Safety on the ground of driving under the influence. Under OCGA § 40-5-67.1 (g) (2), “[t]he scope of the hеaring shall be limited to [certain specified] issues. ...” Appellant contends that the above-cited statutory provision unconstitutionally deprives him of due process because of the limited scope of the hearing provided for therein.
Appellant has no standing to challengе the constitutionality of OCGA § 40-5-67.1 (g) (2). The instant case does
not
involve an administrative hearing to determine whether appellant’s driver’s license should be suspended, the conduct of which hearing
is
addressed in OCGA § 40-5-67.1 (g) (2). Compare
Bell v. Burson,
In Geоrgia, the [S]tate may constitutionally take a blood sample from a defendant without his consent. [Cit.] Our “Implied Consent Statute” ([cit.]) thus grants a suspect an opportunity, not afforded him by our constitution, to refuse to take a blood-alcohol test. [The statute] grantjs], rather than denfies], a right to a dеfendant. We agree with the United States Supreme Court’s view that neither choice afforded a defendant is “so painful, dangerous, or severe, or so violative of religious beliefs” that no choice actually exists. *571 [Cit.] We thus find no compulsion on behalf of the [S]tate and no violation оf due process or OCGA § 24-9-20. [Cit.]
Allen v. State,
“The legislature grants the right and determines its nature.” Allen v. State, supra at 434 (1) (b). Although the legislature has granted a driver the right to refuse to take a State-administered test, it has nevertheless mandated that evidence of the exercise of that right shall be admissible in the driver’s criminal trial. OCGA § 40-6-392 (d). “A defendant’s refusal to take a blood test is certainly relevant and probative in a case such as this one. [Cit.]” Allen v. State, supra at 434 (1) (c). It follows that the trial cоurt correctly denied appellant’s motion to suppress.
2. Over objection, the State was allowed to introduce evidence regаrding appellant’s pre-arrest refusal to undergo the alco-sensor test. This evidentiary ruling is enumerated as error.
Appellant urges that the evidence was inadmissible because, prior to requesting that he undergo the alco-sensor test, the officer failed to give him the Implied Consent warnings.
First and foremost, alco-sensor results are not used as “evidence of the amount of alcohol or drug in a person’s blood.” [Cit.] Instead, the alco-sensor is used as an initial screening device to aid the police officer in determining probable cause to arrest a mоtorist suspected of driving under the influence of alcohol. [Cits.]
Turrentine v. State,
Appellant further urges that evidence of his refusal to undergo the alco-sensor test was inadmissible under the Fifth Amendment. Contrary tо appellant’s contentions, however, the trial court was authorized to find that, at the time the request was made, “he was not in the custody of thе police as that phrase has been construed with regard to the establishment of constitutional protections. [Cits.]”
Montgomery v. State,
Appellant also contends that the evidence would be inadmissible under OCGA § 24-9-20. That statute,
which embodies the constitutional right against self-incrimination ([сit.]), states that “[n]o person who is charged in any criminal proceeding with the commission of any indictable offense or any offense punishable on summary conviction shall be compellable to give evidence for or against himself.” This statutory proscription is more protective of the individual’s right than the Fifth Amendment, which covers only a defendant’s statements, since the Georgia statute has been construed to limit the State from forcing an individual to present evidence, testimonial or real. [Cits.] However, OCGA § 24-9-20 is inapplicable to the field sobriety tests in the case at bar because аppellant was not a person charged in a criminal proceeding at the time he [was requested] to complete the tests.
(Emphasis in original.) Montgomery v. State, supra at 95-96 (1).
It follоws that the trial court did not err in admitting evidence of appellant’s pre-arrest refusal to undergo the aleo-sensor test. “[T]here was no violation of [appellant’s] right not to incriminate himself under the fifth amendment, the Georgia Constitution, or OCGA § 24-9-20, because he was not in custody at the time thе field sobriety test was [requested].”
Lankford v. State,
3. It is urged that the trial court erred in limiting the scope of appellant’s cross-examination of the policе officer with regard to appellant’s understanding of the Implied Consent warnings. “Although the appellant is entitled to a thorough and sifting cross-examinаtion of a witness, the scope of such cross-examination is within the sound discretion of the trial court. [Cits.]”
White v. State,
Judgment affirmed.