Poss v. StatePoss v. State
- Reporters:
- , ,
- Before:
- Carley
Appellant appeals from his conviction of driving under the influence of alcohol.
1. Appellant first enumerates as error the trial court’s ruling thаt the police officers of the City of Cumming had jurisdiction to arrest him. The court’s ruling in this regard was initially made at a pre-trial motion hearing and then reiterated at trial through the denial of appellant’s motion for directed verdict. Appellant bases his contention regarding jurisdiction on the fact that the officers stopped and arrested him outside of the city limits of Cumming.
The following evidence was adduced at trial and at the motion hearing: Two оfficers of the City of Cumming Police Department were patrolling the city in their vehicle at approximately 3:00 a.m. when they observed appellant’s vehicle approaching from the opposite direction and travelling toward the city limits boundary. They saw appellant’s vehicle run оff the road to the right, return to the roadway, and then cross the yellow line. Before the officers could turn their car around in order to follow appellant and investigate his erratic driving, two more cars travelling in appellant’s direction passed by. After turning their vehicle, the officers, although sеparated by some distance and the two intervening automobiles, again observed that appellant’s car was weaving. When both of the intervеning vehicles subsequently turned off the main road, the officers caught up with appellant’s automobile. At that time, appellant’s vehicle was still inside thе city limits, but was about to enter a curve in the road. The officers waited until appellant had safely negotiated the curve before they turned оn the patrol car’s blue lights and siren. By that time, both vehicles were beyond the city limits. Appellant pulled over and the officers arrested him for driving under the influence of alcohol.
*87 The officers testified at trial that they did not turn on the patrol car’s blue lights or siren while appellant’s vehicle was in the curve for reasons of safety, as there was a ditch beside the road and no shoulder on which to pull over. One of the officers testified, “We dо not stop anybody in a curve.” After his arrest, appellant was taken to city hall where a breath test was administered.
There is no question that, based upon appellant’s driving behavior, the officers in the instant case had the legal authority to initiate a pursuit of appellant and, if necessary, to go outside of the city’s geographic limits in order to effectuate an arrest. Shirley v. City of College Park, supra. See also Rick v. State, 152 Ga. App. 519 (263 SE2d 213) (1979); Askew v. State, supra. The fact that the officers did not engage in a high speed chase in their pursuit of appellant, does not necessarily mandate a finding that appellant’s stop and arrest beyond the city limits were unauthorized under the “hot pursuit” doctrine. We believe that the critical elements characterizing “hot pursuit” are the continuity and immediacy of the рursuit, rather than merely the rate of speed at which pursuit is made. See 5 AmJur2d 743, Arrest, § 51. Reason compels the conclusion that the doctrine of “hot pursuit” authorized the officers to pursue appellant and to stop and arrest him at the first opportunity for doing so which was, under the circumstances, safe for all concerned — appellant, the officers and other motorists. “[T]he officer had both the authority and the duty to insure that no harm occurred as a result of his pursuit and arrest.” Wooten v. State, supra, at 99. From a review of the undisputed evidence in the instant case, it appears that this safe *88 opportunity first presented itself just after both vehicles had travelled outside of the city limits. Because of the delay caused by the need to turn their vehicle around, the intervention of the two other vehicles and the appellant’s subsequent passage into the potentially dangerous curve in the road, the officers were unable to effectuate a safe stop of appellant’s automobile while it was still within the city limits. Therefore, the triеd court did not err in ruling that the city police officers had jurisdictional authority to arrest appellant.
2. Appellant also enumerates as еrror the trial court’s refusal to give appellant’s request to charge the jury on the officers’ authority to make arrests and its further refusal to otherwise allow that issue to be placed before the jury. In arguing that the court erred in ruling that no mention of this issue could be made to the jury, appellаnt relies on legal authority pertaining to the requirement that venue be proven and that proof of venue is a matter for jury resolution.
There is no connection between the authority of the city police to arrest appellant — the subject of this enumeration — and the issue of venue. Venue relates to the place of trial. Criminal actions shall be tried in the county where the crime was committed.
3. “The sole ground [on appeal of the denial of appellant’s motion] to suppress the evidence [of the intoximeter results] was that the arrest was illegal; and that having fallen [see Division 1, above], the trial court was correct in overruling the motion to suppress.” Wright v. State, 134 Ga. App. 406, 407 (214 SE2d 688) (1975).
4. Appellаnt next contends that the court erred in admitting the results of the Auto-Intoximeter breath test into evidence over objections to the qualifications оf the officer who administered it. Our review of the transcript shows that there was no error. See
5. Appellant also contends that the trial court erred in permitting the proseсutor to refer in his opening argument to the results of the breath test. “ [T]he prosecution in its opening statement is permitted to state what it intends to prove...” and when evidence is subsequently presented to prove same, there is no error. Pinion v. State, 225 Ga. 36, 38 (5) (165 SE2d 708) (1969). See also Kelley v. State, 98 Ga. App. 324 (1) (105 SE2d 798) (1958).
Judgment affirmed.
Deen, P. J., and Banke, J., concur.