Klink v. StateKlink v. State
- Reporters:
- , , ,
- Before:
- Benham
At issue in both of these appeals is the constitutionality of
Case No. S00A0503
Appellant Klink was involved in an automobile accident when he allowed his vehicle to cross the centerline and strike an onсoming vehicle head on. The officer who investigated the accident observed that Klink smelled of alcohol. Klink stated that he had consumed five vodka tonics. Aftеr subjecting Klink to a series of field sobriety tests, the officer concluded that Klink was under the influence of alcohol and placed him under arrest for DUI. The officer read Klink an appropriate implied consent notice regarding chemical testing as mandated by
Case No. S00A0874
Appellant Watt was found by police in his automobilе, which was stopped in the center turn lane with its brake lights on and engine running. Watt was in the driver’s seat with his head tilted back. The officers were able to wake Watt after much diffiсulty. Watt had great difficulty complying with simple requests made by the officers and was unable to perform all of the tasks required for the field sobriety tests the officers administerеd. He was arrested and read an appropriate implied consent notice regarding chemical testing, pursuant to
1. Both Klink and Watt contend it was error for the trial courts to uphold the constitutionality of
It is clear that the Georgia Constitution doеs not protect citizens from compelled blood testing or from the use of the results of compelled blood testing at trial. Allen v. State, 254 Ga. 433 (1) (330 SE2d 588) (1985). Nor is compelling a defendant to submit tо breath testing unconstitutional under Georgia law. Green v. State, 260 Ga. 625 (398 SE2d 360) (1990) (“[T]he use of a substance naturally excreted by the human body does not violate a defendant’s right against self-incrimination under the Georgia Constitution.”). The right to refuse to submit to state administered testing is not a constitutional right, but one created by the legislature. Id. The choice provided by the statutе at question is not coercive because it is not “so painful, dangerous, or severe, or so violative of religious beliefs” that no real choice exists. South Dakota v. Neville, 459 U. S. 553, 563 (103 SC 916, 74 LE2d 748) (1983); Nor dо we conclude that the statute is so misleading or incomplete that no real choice exists. This is not a case where the legislature has “subtly coerced [a defendant] into choosing the option it had no right to compel, rather than offering a true choice.” Id. at 563; Wessels v. State, 169 Ga. App. 246 (1) (312 SE2d 361) (1983). The Georgia Constitution allows the state to comрel blood and breath testing without warning that the results may be used against a defendant at trial. Allen, supra; Green, supra. “Given, then, that the offer of taking a blood-alcohol test is clearly lеgitimate-, the action becomes no less legitimate when the State offers a second option of refusing the test, with the attendant penalties for making that choice.” Neville, supra. As we stated in Allen, “The legislature grants the right and determines its nature. By limiting the right in its creation, the legislature has not negated the right.” Allen, supra.
Klink and Watt also argue that the legislature’s inclusion of a warning in the implied consent notices given to boaters suspected of
2. Watt argues that his breath test results should not have been admitted into evidence because the foundational requirements for admission of сhemical tests have not been met since the manufacturer’s suggestions regarding observing a suspect for 20 minutes before performing a breath test were not followеd. Watt maintains that the manufacturer of the Intoxilyzer 5000 suggests that a suspect be observed for 20 minutes before performing a breath test in order to avoid invalid results. Specifically, Watt notes
We need not determine at this point whether the 20-minute observation requirement is a “method approved” by DFS because Watt was in custody for well over 20 minutеs before being tested. Berkow v. State, 243 Ga. App. 698 (534 SE2d 433) (2000); Stinson v. State, 203 Ga. App. 225 (3) (416 SE2d 765) (1992). Thus, even if we were to assume that DFS approved a 20-minute observation period as part of the testing method, the trial court’s ruling should not be overturned because the state complied with this requirement. 1 Id.
Watt cites Casey v. State, 240 Ga. App. 329 (523 SE2d 395) (1999), in support of his argument that the state must observe a suspect for 20 minutes before proceeding with testing. However, Casey is distinguishable because in that case, the court dealt with the circumstance where authorities did not wait 20 minutes before retesting a suspect after the machine indicated the presence of residual mouth alcohol. There is no evidence that suggests that residual mouth alcohol was present at the time Watt took the breath test or that he took any other action that would have yielded an invalid result.
For the reasons stated above the rulings of the trial courts are affirmed.
Judgment affirmed.
All the Justices concur.
Notes
Watt notes that DFS was exempted from the requirements of the Administrative Procedure Act (APA) with respect to approval of testing methods for blood alcohol concentration in support of his argument that the testimony of an officer that administered the breath test established that allowing 20 minutes to observe a suspect before conducting the test is a method approved by DFS. Appellant relies heavily on this Court’s ruling in Price v. State, 269 Ga. 222 (4) (498 SE2d 262) (1998), in which we recognized thаt DFS was no longer subject to the APA. However, Price is not applicable to the instant case because in Price, a defendant challenged the admission of breath test results because DFS had not administratively approved the use of thе gas chromatograph or methods for operating and maintaining the machine. Watt misconstrues the holding of Price to mean that due to the lack of administrative formalities to which DFS is subjected, a defendant can establish through testimony at trial what methods DFS has approved.