Snelling v. StateSnelling v. State
- Reporters:
- , ,
- Before:
- Birdsong
The defendant, Lee Snelling, was charged with and convicted of driving under the influence of an intoxicant. See
He smelled a strong odor of alcohol about his рerson and requested him to submit to a DUI field test, which consists of blowing into an “alcosensor” issued to him by the Georgia Department of Public Safety. The “alcosensor” is not a highly accurate indicator of the intoxication level of a person but is an investigative aid to an officer in determining whethеr the individual should be transported to a police station and given an approved intoximeter test. The officer obtained a reading of .11 grams percent blood alcohol on the defendant, which was close to the .12 percent prohibited by
1. The defendant enumerates as error the denial by the trial court of his motion to suppress on the ground that “the state failed to make an affirmative showing either that the accused had requested an additional chemical test and had been given an opportunity to take the test; or that he had waived his stаtutory right to an additional chemical test of his own choosing.” In
Steed v. City of Atlanta,
172 Ga. App. 839 (325 SE2d 165), a DUI suspect testified that he requested a blood test four times. In the face of the affirmative request for an additional test, this court held the state, in effect, should have
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made an affirmative showing on the record as to the dispositiоn of that request. The rationale was that a silent record will not satisfy the demands of
Appellant seeks to extend the rationale of the Steed case so as to place a burden upon the state to show in all cases that not only was the right to an indeрendent test explained but additionally to show that the test (by kind) was performed or that the suspect declined to exercise the proffered right.
As we read this statute a duty is placed upon an officer who administers or causеs to be administered a chemical test for alcoholic content in bodily fluids to advise the testee that he is entitled to an independent test of his own choosing. Once that duty is fulfilled by the officer, the statutory obligation is satisfied. Sworn testimony by the officer that such advice was given constitutes a primа facie showing of compliance.
As in other cases where affirmative defenses are involved, we conclude that an affirmative defense (i.e., a non-compliance by the officer or denial of an opportunity even where the rights have been enunciated) is a matter fоr the defendant to raise and not a matter for the state to negate (see
Further consideration of Snelling’s argument that this court in Steed mandated a sua sponte refutation of the affirmative defense by the state even when no such dеfense had been placed in issue requires an additional answer. Even assuming such a contention has validity, we now hold that Steed, supra, is not a binding precedent as one of the judges concurred in judgment only. Court of Appeals of Georgia Rule 35 (b). See also State v. Dull, 176 Ga. App. 152 (335 SE2d 605).
In this case the jury, and the trial court as finder of fact in the *194 suppression hearing, were authorized to find that the arresting officer complied with the mandate of the Code and twice advised the defendant of his implied consent rights. This is all the law requires. We are not authorized to impose additional requirements to those delineated by our lеgislature, which are contained in the Code. Our constitution demands that the legislative and judicial powers shall forever remain separate аnd distinct. Art. 1, Sec. 2, Par. 3. Legislation is the domain of the legislature and only interpretation of such codified legislation lies within the province of the courts. Modern Homes Constr. Co. v. Burke, 219 Ga. 710, 714-715 (135 SE2d 383); Pearle Optical v. State Bd. of Examiners in Optometry, 219 Ga. 364, 373 (133 SE2d 374). If the legislature wishes to lay an additional burden upon the state in cases such as the instant one, that is the prerogative of the legislature and nоt this court. Insofar as Steed, supra, may imply the refutation of an affirmative defense by the state where no such defense has been raised, that implication is negated and will not be followed. This enumeration is without merit.
2. It is contended that there was “nо reasonable articulable suspicion that a traffic violation had occurred or that an occupant of the car was otherwisе subject to seizure.” We do not agree. Our Uniform Rules of the Road require that motor vehicles “shall be driven upon the right half of the roadway,” with certаin exceptions not here applicable.
Judgment affirmed.
Carley and Sognier, JJ., concur.