Page v. StatePage v. State
- Reporters:
- , , ,
- Before:
- Sognier
Clаrence E. Page was charged with driving under the influence of alcohol (
The evidence adduced at trial established that shortly after 10:00 p.m. on June 22, 1990, Officer Ulysses Musgrove, a member of the DUI Task Force of the Cobb County Police Department, was on patrol on Canton Highway. Observing the van driven by appellant cross the yellow centerline twice and veer off the edge of the road three times, Musgrove followed and then stopped appellant. After identification and a brief conversation, during which Musgrove noticed the odor of alcohol on appellant’s breath, Musgrove administered several field sobriety tests. Following those tests, which appellant failed, appellant was аrrested, placed in the back of Musgrove’s patrol car, and read his implied consent rights. Appellant indicated that he would consеnt to a breath test, and he was transported by Musgrove to a mobile unit where he signed a form indicating he agreed to the breath test. Musgrove showed appellant his permit to operate the Intoximeter 3000. The breath test administered indicated a result of 0.12, and a second test administered 20 minutes later at appellant’s request indicated a result of 0.11.
1. Appellant contends the trial court erred by denying his motion for a dirеcted verdict of acquittal.
(a) Count Two of the accusation charged appellant with driving a motor vehicle with an unlawful blood alcohol level in that on the date in question he “did physically control a moving vehicle while his aleo *829 hoi concentration was at least 0.12 grams within three hours after such physical control ended, from alcohol consumed before such physical control ended.” Appеllant argues that because of the wording of the accusation, the terms “alcohol concentration” and “grams” were necessary facts which the State was required to prove, and the State’s failure to offer proof in those specific terms amounted to a fаtal variance between the allegata and probata. See Walker v. State, 146 Ga. App. 237, 240-242 (246 SE2d 206) (1978). However, the Supreme Court has held that a fatal variance is one which fails to meet “ ‘the obvious requirements (1) that the accused shall be definitely informed as to the charges against him, so that he may be enabled to present his defense and not be taken by surprise by the evidence offered at the trial; and (2) that he may be protectеd against another prosecution for the same offense.’ . . . [Cit.]” DePalma v. State, 225 Ga. 465, 469-470 (3) (169 SE2d 801) (1969). Here, even assuming a variance existed, but see infra, it is clear that it would not subject appellant to either of the dangers set forth in DePalma, and thus it would not be fatal. Id. at 470.
Nor did the State’s failure to use those terms render the evidence insufficient to authorize appellant’s conviction on Count Two. Mus-grove testified that the Intoximeter 3000 analyzes a subject’s breath sample, and that immediаtely before he administered the test to appellant, appellant signed a form acknowledging that the implied consent warning had been read to him. That form, which was introduced into evidence at trial, recited, inter alia, that appellant had consented to a brеath test “for the purposes of determining alcoholic . . . content.” The language of
(b) Since we have held the trial court properly denied appellant’s motion for a directed verdict of acquittal as to Count Two of the accusation, Count Two was properly before the jury and we need not address appellant’s contention that the trial court erred by charging the burden-shifting language of
(c) Insofar as appellant’s enumerations of errоr may be construed to contain a contention that the evidence was insufficient to find him guilty of being a less safe driver, we find no merit in such a cоntention in light of Musgrove’s testimony regarding appellant’s driving and failing the field sobriety tests.
2. We do not agree with appellant that the trial court еrred by admitting into evidence the results of the Intoximeter 3000 test because a proper foundation had not been laid. Musgrove testified to his experience on the DUI Task Force; his Police Academy training; his training in the use of the Intoximeter 3000; and his certification by the Division of Forensic Sciences of the GBI. Musgrove’s testimony also established that he had a permit to operate the machine, which had been displayеd to appellant before he took the test and was introduced into evidence. All the foundation requirements of
3. The record reveals that, contrary to appellant’s assertion, the State did disclose appellant’s custodial statement in response to appellant’s pretrial motion made pursuant to
4. We note that appellant’s convictions under
Judgment affirmed in part and vacated in part.
McMurray, P. J., and Andrews, J., concur.