Aрpellant was tried before a jury and found guilty of speeding and driving under the influence in violation of OCGA § 40-6-391 (a) (4). He appeals from the judgments of conviction and sentences entеred by the trial court on the jury’s guilty verdicts.
1. “Defense counsel has concluded his arguments as to each enumeration of error by stating the trial court’s action violated defendant’s rights under certain designated sections of the United States and Georgia Constitutions. It behooves counsel appearing before this court to recognize that rote repetition of constitutional provisions is totally ineffective in raising a constitutional issue for this court’s determination. [Cits.] A constitutional issue cannot be considered when asserted for the first time on appeal but must be clearly raised in the
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trial court and distinctly ruled upon there. [Cit.] Contentions regarding a constitutional issue which were not made belоw are thus not passed upon here.”
Harbin v. State,
2. The trial court’s denial of appellant’s motion to quash the accusation is enumerated as error.
The traffic citations were sufficient to inform appellant of the charges against him, even though they merely referred to the applicable statutes by number. “[T]he accusation [s] in effect incorporated the terms of the applicable code section [s] that [appellant] was charged with having violated. [Appellant] could
not
admit the allegation^] that his acts were ‘in violation of [the specified code sections],’ and yet not be guilty of the offense [s] of [speeding and driving under the influence]. [Cit.]” (Emphasis in original.)
State v. Howell,
Appellant’s further contention that the accusation failed to charge him with the crime of driving under the influence is without merit. “[T]he intent of the legislature in amending OCGA § 40-6-391 was clearly not the repeal of criminal sanctions for driving under the influence of alcohol. Appellant[’s] defense based thereon was properly rеjected by the trial court.”
Proo v. State,
3. Seeking to exclude the results of his intoximeter test, appellant filed a motion to suppress and motion in limine. The failure of the trial court to hоld a hearing on this motion is enumerated as error.
“Appellant was clearly not entitled to a pre-trial hearing on such grounds of his motion as had alleged the State’s non-сompliance with either OCGA § 40-6-392 or administrative regulations concerning the administration of a blood test. Such grounds for holding evidence to be inadmissible may be raised only by way of a motion in limine. [Cit.] ‘ “The trial court has an absolute right to refuse to decide the admissibility of evidence, allegedly violative of some ordinary rule of evidence, prior to triаl. [Cits.]” [Cit.]’ [Cit.] At the trial itself, appellant did not renew his motion for an evidentiary hearing outside the presence of the jury on such grounds of his pre-trial motion as had alleged non-cоmpliance with OCGA § 40-6-392 or the administrative regulations concerning the administration of a blood test. Accordingly, the trial court did not err in failing to hold such a hearing to
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determine the аdmissibility of the evidence and testimony as against such contentions.”
Sapp v. State,
Likewise, appellant was not entitled to a pre-trial hearing pursuant to OCGA § 17-5-30. That statute “ ‘furnishes a procedural device for the protection of constitutional guarantees against unreasonable search and seizure only.’ [Cit.]”
State v. Johnston,
4. The
denial
of the motion to suppress and motion in limine is also sеparately enumerated as error. As discussed in Division 3, however, the trial court did not, and was not required to, rule on the merits of the motions before trial. Appellant never rеnewed the motions during trial. It follows that the motions were never denied and that this enumeration is without merit. See
Lightsey v. State,
5. The trial court’s refusal to require the State to produce a rаdio log and an intoximeter log pursuant to OCGA § 24-10-26 is enumerated as error.
OCGA § 24-10-26 applies only to material which is in the possession, custody or control of another party. The mаterials at issue here are not of the type reasonably expected to be found in the custody of the assistant solicitor who was preparing the case against appellant. The assistant solicitor stated that he did not possess the requested materials and appellant made no showing to the contrary. Accordingly, this enumerаtion is without merit. See
Ross v. State,
6. The trial court’s imposition of limitations on the testimony of certain defense witnesses is enumerated as error.
A defense witness was not allowed to testify thаt, after ingesting acetone, an intoximeter test of his breath showed an alcohol concentration of 0.05 grams. It is clear, however, that this particular test “would not prоve that the machine gave an inaccurate reading for [appellant] on [the date of his arrest], since the original test conditions . . . could not have been duplicated.”
Kuptz v. State,
The trial court refused to qualify a defense witness аs an expert on the Intoximeter 3000. However the only proffer made by appellant was of testimony which the trial court excluded on grounds other than the witness’ lack of qualification as an expert. The absence of any further proffer precludes appellate review of this enumeration. See
Bowman v. State,
Insofar as appellant’s rеmaining contentions are concerned, “[o]ur review of the record reveals no evidence of the trial court’s having discredited . . . appellant’s primary defensе.” Kuptz v. State, supra at 152 (8).
7. On voir dire, appellant’s counsel sought to ask the prospective jurors the following question: “If the Judge were to give you an instruction of law that disagrees with some teaсhing of the Bible, is there anybody that would follow the instruction of the law the Judge gave you and disregard what you believe to be in the Bible?” The trial court’s refusal to permit the prosрective jurors to answer this question is enumerated as error.
“While a party is entitled to ask whether or not a juror would be able to follow the court’s instructions, the court need not allow questions which ask jurors to weigh the relative merits of various laws. [Cit.]”
Williams v. State,
8. The trial court’s denial of appellant’s motion to disqualify the assistant sоlicitor is enumerated as error.
Appellant’s contention that the assistant solicitor was subject to disqualification because he had not taken the oath of offiсe “is refuted by [OCGA § 45-3-10] which provides ‘the official acts of an officer [shall be valid regardless of] his omission to take and file the oath, except in cases [where so spеcially] declared.’ ”
Little v. State,
Appellant’s remaining contentions regarding the purported disqualification of the assistant solicitor were not timely made. “Due dil
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igence would have required that inquiry be made at the time of the trial as to [the lack of local law authorization, the failure to post a bond, and] the source of employment and compensation of the [assistant solicitor] if the defendant desired to make an issue on this question. [‘]Mere irregularities in the conduct of a trial, not vitally affecting the merits of the case or the rights of the parties, will be held to have been waived if no objection was made to them at the time.’ [Cit.]”
Howington v. State,
Judgments affirmed.