*1 alcohol content. appellant’s entirely.

The convictions should be affirmed Beasley Judge opinion. I am authorized to state that in this Presiding Judge, concurring part dissenting part. fully I 1, respectfully all that is said in Divisions majority opinion, judgment. However, and the dissent regard agree prop- to Division 4 Ias do not that the trial court erly admitted the results of defendant’s intoximeter test. judice, In Rowry the case sub Officer Cook testified that Officer operate was “certified” to the “machine” that was used test de- fendant’s breath and that “there was a certificate with Officer Rowry’s name on the .wall . . where we ran the intoximeter.” How- testify ever, Officer Cook failed to that the certificate was issued Department Safety Rowry of Public or that Officer was certified operate the State to fact, the intoximeter machine. on cross- examination Officer Cook [the affirmed that he did not in- “know permit. testimony machine] toximeter had a ...” This was insuffi- proper cient to establish a foundation for into introduction evidence Willoughby of the results of defendant’s breath State, test. See 153 165 352). Compare Ga. Ga. Stewart v. (2, 3) 134). Presiding Judge Judge am authorized to state that Banke, Car- ley Judge join Sognier opinion. in this 198 Surrency, Robert E. Joseph Atkins, H. Samuel Jr., for Briley, Attorney, appellee. H. District for (two cases). 75833, 75834. SELF v. CITY OF ATLANTA et al. Benham, Judge. injured driving Self was when the vehicle he was col- by appellee City operated by lided with a truck owned of Atlanta and employee. Appellant against city, alleging filed suit that it was Appellee and had fostered nuisance. asserted the defense sovereign immunity admitting of erage gence. and, after that it had insurance cov- appellant’s negli- $1,000 allegation incident, admitted

The trial court then entered favor judg- appeal from $1,000. filed a direct the amount of leave to (Case application as an well ment entered appellant’s granted discretionary appeal. We file a 75834). less than from a appeals are 1. Inasmuch as these required to damages, appellant $2,500 in an action entered 5-6-35 court’s action. OCGA the trial discretionary review of seek *2 must appeal (a) (6). direct Accordingly, appellant’s be dismissed. that the holding trial court erred Appellant

2. contends the only to the extent of waived immunity had been city’s sovereign Assembly General maintains that the coverage. Appellant immunity when it city’s sovereign the Georgia expressly waived in 1973. city’s present the charter adopted charter, Assembly of the new Through passage the sued, plead to and be empowered the Atlanta “sue equity in all actions whatso courts of law and impleaded all readily we admit the p. . .” L. 2190. While ever. . Ga. quasi- immunity as sovereign the courts relaxed Andrews, 250 entities, Hosp. Auth. v. Ga. government Medical Center 28) (1982); &c. Univ. Busbee v. Ga. SE2d Conference 437) (1975); Knowles v. Hous Professors, 235 Ga. 752 SE2d 659) (1956); Columbus, 212 Ga. Marine ing Auth. Auth., App. Ga. Port Terminals v. Ga. Ports Co., 896) (1986); Hwy. Dept. v. L. Constr. Ga. W. Cobb 500) (1965) App. governmental still as to it is vibrant Therefore, those distinguishing entities. the trial court was correct summary ap cases from the granting one bar pellee. responsible maintaining city

3. contends nuisance, trucks, vehicles, by em- sludge IV Class ployees who IV driver’s licenses. do have Class nuisance, municipal-

“To be of a held liable for maintenance rep- or ity chargeable performing regularly must be a continuous act, repetitious condi- regularly etitious or a continuous or creating tion, hurt, inconvenience, . . &c. .” injury. which causes Palmerio, 242 Savannah v. had improperly failed to licensed drivers caused show Atlanta opinion vehicular collisions. The of this court by appellant, Whatley, cited improperly does not reflect that the driver was licensed. gener- driving sludge,

4. the act Lastly, argues that function, ally was, genera- governmental considered a due revenue tion, actually no evidence that ministerial function. Since there was any garbage to offset garbage purpose fees were used for other than expenses, summary granting collection court not err in did Bellew, city. to the See Valdosta v. Appeal dismissed in Judgment Case 75833. in Case affirmed J., J., No. 75834. and Pope, specially. Judge, specially. concurring

Pope, Although I agree with the in Di- holding by majority reached vision 2 compelled of its separately to write because majority’s apparent inconsistency resolve between the “sue and be contained in the sovereign granted municipal which is corporations this state.

As by appellant, sued,” noted phrase “sue and be import, words of similar express have been held to an constitute waiver of immunity. by As suggested majority, however, the cases by appellant relied on do involve the interpretation phrase of that an alleged connection with waiver and are not dispositive presented of the issue case. believe this issue can ascertaining be resolved constitutional, relevant statutory pertains and case law to the particular entity scrutiny. under

Municipalities, law, as recognized by and both statute case long enjoyed immunity liability from in performance tort of legis- judicial lative and McCrary Eng. Bowdon, functions. v. Corp. 170 Ga. App. 308) (1984). 464-65 “In 1880 the Su- preme Court of Georgia in Rivers v. Augusta, Council 65 Ga. of 787), AR promulgated whereby municipal doctrine cor- poration was liability ruled to have no tort in acting per- when formance of functions as contrasted with conduct of ministerial or non-governmental duties. This common law doctrine was thereafter first codified as in Section 748 the Code and subsequently carried forward as Section 897 in the Code of 1910 and in as Newnan, Section Mitchell v. City [the] 69-301.” 125 Ga. App. 917) (1972). 761-62

At the time case, the action was present provision filed granting sovereign immunity to municipal corporations was codified OCGA “Municipal follows: cor- porations shall not be liable for perform, for errors performing, their legislative judicial powers. per- For neglect form, or improper performance or unskillful of their ministerial du- ties, they shall be liable.” language may presently be found at (b).1 OCGA 36-33-1 recog- it was history from outset

This demonstrates brief improper municipality may be liable nized that a Likewise, recog- it has been their ministerial duties. performance in con- not attach municipal immunity nized doctrine of that the nuisance, see, e.g., maintenance of nection with Point, East Rainey v. rights, such as emi- concerning in actions constitutional Regents the Univ. cases, Co. Bd. see CFI Constr. nent domain short, it has (4) System, App. 471 sued. corporations can sue be long municipal been rule that Gregory, Athens v. 231 Ga. 710 &c. of (1974). found

Accordingly, the “sue believe which, histori- simply those situations refers to my applied. In cally, has not been doctrine statutory lan- “interpretation comports with the such an reason, guage, and it works tandem legislative intent and not in tension of the 36-33-1 and constitution state] [OCGA § Bowden, County DeKalb School Dist. v. therewith.” McMurray Presiding Judge authorized state special concurrence. July Fox, Moore, Billy Patrick J. E. Brooks, Crowder, Cohen, C. Mary Cooney,

Jo Jan Marva J. A. applicable pending litigation on 36-33-1 was “(a) II, subsequently Para amended to Pursuant to Article Assembly, except pro graph Georgia, of the Constitution of the State section, public policy vided in that there this Code declares it is the of the State sovereign immunity municipal corporations no waiver pal corporations the state and such munici liability (Emphasis supplied). *4 damages.” shall immune from immunity by provides municipality purchase section that a also waive its liability insurance, “except provided policy unless the of insurance available, issued an occurrence for the defense of covers (b) policy.” the extent of the such Subsection retained limits of (see language previously text, supra). contained in OCGA 36-33-1 authority Although legislature of munici- has constitutional to waive the Constitution, palities pursuant II, Paragraph Georgia I con- to Article section,” “except to mean strue the that of OCGA 36-33-1 this authority, expressly legislature will so should the choose to exercise that provisions of that section. appellees. THE 76062. SCHMIDT v. STATE. Presiding Judge. ap- trafficking Defendant he was convicted cocaine and

pealed. assignments challenges error, four Via he court’s suppress denial his motion evidence. suppress hearing,

The evidence adduced at the motion to viewed early morning in favor of the is summarized In the Trooper 4,1986, hours of November Ralston observed a plate heading 1986 Thunderbird with an Illinois license northbound (the m.p.h. travelling on Interstate 75. The automobile was speed m.p.h.) stopped limit was 55 so it. The Ralston time was 2:18 a.m. stepped

Defendant exited the automobile and to the rear. He was produce speeding advised he had been and was asked to a driver’s registration. gave license and vehicle a Illi- Defendant Ralston valid gave agreement license; nois he also him a rental for the Thunderbird. unemployed; college Defendant told Ralston he was that he was a returning Illinois; student in northern he and that was from central gone (Ralston purchase Florida where he had an automobile. testi- Orlando.) Tampa fied defendant told him he had been to regard, bought defendant told Ralston that automobiles could be cheaper why in Florida and that was he went there. Examining agreement, the rental Ralston observed that defend- ant rented the Thunderbird on October and that the first automobile he had rented. He also noticed that rental price per (plus of the automobile was week $290 cents mile per day) put after the first 200 miles and that defendant down $300 a deposit cash on the automobile. Looking through maps, windows, the car Ralston saw two road a pillow, travelbag blanket a small and fast trash. He food also ob- served radar detector on the dash. gave warning speeding

Ralston defendant a written for the viola- agreement tion. He returned the driver’s license and rental to defend- ant. give

Defendant was asked he would his consent to a search of hurry, gave the automobile. he said in a he was defendant permission signed oral afor search. Then defendant consent written signed to search form. The form was at 2:30 a.m. Searching maps automobile, Ralston the road obtained maps, Chicago found two motel bills. On the road the route from