598 S.E.2d 105 | Ga. Ct. App. | 2004
A Henry County jury found Bobbie Jean Maddox guilty of DUI (less safe driver) and DUI (excessive BAC).
1. Maddox claims that suppression of evidence was warranted because (a) the stop of her vehicle was improper, and (b) she was denied her right to an independent chemical test pursuant to implied consent laws. We find no merit in either of these contentions.
*839 In reviewing the denial of a motion to suppress, we construe the record to uphold the trial court’s findings and judgment. The trial court’s findings on issues of credibility and conflicting evidence are to be upheld unless they are clearly erroneous. Further, because the trial court is the trier of fact, its findings are analogous to a jury verdict and will not be disturbed if any evidence supports them.2
(a) In this case, Georgia State Patrol Trooper J. Wynn was aiding with traffic control at the conclusion of a race at the Atlanta Motor Speedway. As Maddox was exiting the Speedway grounds, her vehicle was in the traffic lane that was being waved through by Wynn. The trial court found as a matter of fact that when Maddox’s car came by Trooper Wynn, “[t]he driver’s side of the car then hit the officer’s right arm and hand and knocked loose the flashlight that he had been holding. When [Maddox] failed to stop the car, Trooper Wynn pursued her on foot.” When Wynn made contact with Maddox, he smelled a strong odor of alcoholic beverage. Subsequent investigation led to Maddox’s arrest for DUI.
Maddox’s striking of Trooper Wynn with her vehicle was a battery, and an officer may stop a vehicle on the good faith belief that a crime has been committed in his presence. “So long as the stop was based upon conduct the officer observed, not on a mere ‘hunch,’ and it was not pretextual, arbitrary, or harassing, an officer may act on a legitimate concern for public safety in stopping a driver.”
(b) We likewise find no merit to Maddox’s claim that suppression was required because she was denied an independent chemical test
The officer advised [Maddox] of her right to an independent test by a person of her own choosing, as OCGA § 40-6-392 (a) (3) required him to do. She chose an independent test but did not specify any choice of personnel. In the absence of such a choice, the officer’s action in taking [Maddox] to the nearest [facility]... [was] reasonable. This is not a case in which the officer denied a suspect’s reasonable request to be taken to a chosen facility because departmental policy was to allow tests at only one, or a few, specific facilities; the officer never denied [Maddox] the facility [or the personnel] of her choice.6
Accordingly, there is no evidence that Maddox was denied any of the rights to which she was entitled under OCGA § 40-5-67.1 (b) (2).
Because the record supports the trial court’s conclusion that suppression was not warranted on the grounds Maddox urges under this enumeration of error, we find no clear error in the denial of the motion to suppress.
2. Maddox also claims the trial court “attempted to correct the state’s error in proceeding on an accusation that had been nol prossed.” We disagree with this characterization of what transpired below.
Maddox was originally charged in Accusation No. 02SR03371, filed in the January Term of 2002. A nolle prosequi was entered on that action, apparently because Trooper Wynn could not be located. Thereafter, Maddox was arraigned under a new accusation which was filed during the January Term of 2003. The new accusation had been given the same case number as the original action. Maddox moved to dismiss the case as proceeding under the old, nolle prossed accusation. The trial court denied the motion, finding that the case was proceeding under a new accusation, albeit the case number was the same. The trial court determined that, “Although the controlling case law does not place importance upon the case number given to the new accusation, in the Court’s opinion the better practice would be to assign a new case number to the new accusation to avoid any confusion.” Pursuant to the trial court’s direction, the new accusation was assigned a new case number, Case No. 03SR05614.
Maddox, rightly, does not challenge the State’s authority to file a new accusation.
Judgment affirmed.
Blood alcohol content.
(Citations omitted.) Dole v. State, 256 Ga. App. 146-147 (1) (567 SE2d 756) (2002).
(Citation omitted.) State v. Calhoun, 255 Ga. App. 753, 755 (566 SE2d 447) (2002).
Jordan v. State, 223 Ga. App. 176, 178 (1) (477 SE2d 583) (1996).
Georgia Bureau of Investigation.
(Citations omitted.) McDaniel v. State, 218 Ga. App. 555 (462 SE2d 446) (1995).
See McGahee v. State, 133 Ga. App. 964, 966 (3) (213 SE2d 91) (1975) (“Anolle prosequi is a cessation of prosecution for the nonce, but it may spring into life again and be continued again with all of the fervor and energy at the command of the prosecuting officers. A new indictment may be returned or a new accusation may be filed, and the earlier nolle prosequi can in no sense be pleaded as autrefois acquit or former jeopardy, or res judicata”) (citation omitted); accord Buice v. State, 239 Ga. App. 52, 53 (1) (520 SE2d 258) (1999).
Maddox’s claims regarding the State’s inability to find Trooper Wynn in relation to the filing of a new accusation are rendered meritless by Wynn’s presence at trial and testimony therein.