*1 Wages, N. David v. STATE. WHITE THE
Bеasley, Judge. driving moving ve- trial, of was convicted bench by weight .12 percent contained more than hicle while his blood he forth two related appeal sets On alcohol. OCGA § testimony nor the intoximetеr points: neither his be- have been admitted intoximeter copy of the blood appellant with a state failed to furnish cause the pursu- despite appellant’s alcohol test results ant to OCGA 17-7-211. oper- intoximeter called as witness the
It was not until the state had received that the test result he ator that realized facing. he was then the one related to the the state was not propеr test sent maintained it request, but the trial court acknowl- result test. The not edged however, as a court, oversight did not view the state’s trial and intoximeter test result admission into evidence of op- Instead, an testimony. counsel operator’s afforded prior to operator/witness intoximeter portunity to interview the as a witness. time, allows, pre-trial dis- first “[OCGA § 17-7-211] inculpatory or reports, whether in criminal cases of scientific the case- exculpatory, which the to use in state intends Meminger, in-chief or State is entitled document available, days If not defend- days prior least ten ten are may ant entitlеd to the document within a reasonable time shall determine. entitled to a continuance or recess furnish the where the fails document does the that, the state had sent appears although сourt found
Here requested by copy of other documents defendant’s test results him, copies 26 arrest were sent counsel to two test not sent. Defend- test from the March 16 arrest was incident, not on in this cаse the March on trial evidence, finding, was no and no April 26 incident. There mistake was other than inadvertent. did not notice
Defendant’s counsel day day question, test operator for a arresting from thе ones officer listed having ported arrested and administered traffic citation rely preparing obviously He on the test. clearly appearing defense, his crepancies. else he wоuld have noticed these dis- copies “perfectly He admitted that at least one *2 legible, you receipt it”; can read after of the documents complained illegibility state, he never оf their documents or sought. other than the ones purpose
The the state to furnish to defendant the prepare.” in scientific evidence advance of triad is order “in supra apparent рrovision wrong at 527. Here is preparation. had no effect on defendant’s trial He did not in- wrong operator prepare operation challenge terview the prepared intoximеter. Nor did he articulate that he had reading reading, a .21 defend it rather a .18 in would make a difference his defense. The result of the March 16 .18; test for the offense on trial the result of the was copy, whiсh defendant was was .21.
The court to allow defendant to interview witness offered stating so, who administered the test on did defendant indicating that it would take few after inter- minutes view ter of time for him no sufficient be mat- was surprise at mind,
With these facts in we that the court conclude err refusing apply exclusion. of affairs dif- materially Taylor fer Ga. 212) (1984), and Tanner v. The severe called for anything. cases because the state did not furnish As those exclusionary making Law, circumstance applicable prosecuting attorney rule is failure of the to afford dis- at all . . if no at all had been furnished attorney exclusionаry applied.” district would the rule have It was re- peated Taylor, supra making at 410: “The circumstance applicable rule is discovery (c).” at all. OCGA 17-7-211 afford timely, aWhere on demand and al- wrong rеport, beit the and there is no evidence whatsoever that the error mistake, was other than an innocent harm results to de- automatically apply. fendant, the should not surrounding provision discovеry, circumstances provision, hand, and the harm to from the deficient weighed by assessing hand, on the other should be the trial imposed. whether the sanction of exclusion The trial court interpretations аpply appellate be bound would of course govern. claimed, demonstrated,
Even if error State, 177 Green v. is not reversible. appears, none J., Deen, J., McMurray, P. Banke, J.,C. P. Judgment affirmed. J., Benham, JJ., сoncur. J., Sognier, Pope, Birdsong, Carley, P. dissents. dissenting. Judge,
Benham, proper and motion holding, where Under the reports, discovery of scientific made under OCGA 17-7-211 by sending the defendant responds and the State cаse, to use entirely permissible it is now to an discovery to the case in which the report pertinent defendant, so made, though to the even as the failure to make available long to the and nо harm resulted or “an innocent mistake” “inadvertent” defendant. admission of the scientific condones the trial court’s operator’s testimony the case at bar
report and *3 (1) required when grounds: several (2) defendаnt; is no that the fail- there evidence copy furnished the report was provide copy anything with a of the appellant ure to mistake”; Inas- no harm resulted than “innocent of the three myself as I find odds with the at each much above, I junctures mentioned must dissent. attorney fails alto-
It is “[o]nly true that gether to furnish the document does the 904) (1983). However, State, a Law v. 251 Ga. SE2d ex- mid-trial, report concerning polygrаph a five-minute review by as has this court amination of defendant been labelled “[consti- failing altogether is tantamount tuting] unreasonable time and 408, 410 report.” Taylor 172 Ga. furnish a 212) (1984). in the Similarly, opportunity presented bar, prior mid-trial case at to interview the intoximeter witness, to fur- failing altogether tantamount report. nish a alto- majority states that “the severe not furnish
gether Taylor] State did was called because [in However, placed similar anything.” Taylor Mr. report subsequently used situations: received the scientific neither Taylor If Mr. at trial. until the evidence was introduced likewise, appellant, anything, bе received then can have not statutory sanction, exclu- nothing be afforded the received and should sion. Taylor the case at majority apparently distinguishes something, albeit a scien- ground received report him at To hold
tific other than one used OCGA 17-7-211 when it has complied State has with furnished case report defendant a scientific other than standing open which he is trial is to emasculate the statute and to potential the door to abuse the State. The statute be read report any unproduced the exclusion of quested by defendant, and it can be assumed a defendant оnly report pertinent way will seek to his case. In no can the statute statutory as equating compliance read with the State’s act of fur- nishing any report regard without the case which such will repоrt be used.
Having stated that report, opposite then takes the view that seemingly to provide appellant with copy of the was anything other (b) than an inadvertent innocent error. OCGA states that “the complete any defendant shall be entitled to written reports possession prosecution which will be introduced in whole in part against (c) prosecution . . . prosecution Failure to furnish the dеfend- any with a report, written scientific when a defendant, written demand has been made shall result in such being suppressed excluded and from evidence in the prosecution’s case-in-chief or ‘shall’)
“Thе statute mandatory makes it (using word any to be a complete in the possession provides the State uses and failure to furnish results in the report excluded from case.” Metts v. prosecution’s (5) (291 “This speаks mandatory statute terms . .” Luck v. The stat- ute contains no “inadvertent” or “innocent error” exception to its mandatory language, not, branch has until today, exception. constructed such an wording, light thе statute’s can- *4 not condone such a interpretation of the statute.
The majority also concludes that suffered from the admission of the scientific which he had asked for but given. I must out guilty was found point driving moving vehicle while there was or more weight of .12% (a) (4). alcohol his blood. OCGA 40-6-391 order for a defend- § offense, ant to be show, convicted of this State must “[t]he find, factfinder must the defendant had least blood- .12% Lester v. driving.” alcohol count while he was by having made showing Such a intоximeter or the defendant’s result of admitted into evidence Without that issue here. very report breathalyzer stand, it matters not how evidence, for conviction cannot him a is vio ability when the impaired driving Thus, without the admission lation of OCGA 40-6-391 § been, a le not have support conviction. standpoint, sufficient evidence to gal State failed to “harm resulted when the standpoint, From the factual thereafter were discovery statute and the abide is to speculate To conclude otherwise the defendant. used Metts upon the had opinions effect what these [factfinder].” er of ‘harmless positiоn at Division 5. “[R]etreat skimp on the divul . . to a skeleton ror’ . would allow the State informa gence legislature, deprive mandated to, with the added evidence tion he is entitled and secure convictiоn Such immeasurably, the factfinder. persuade, insurance however in at least meaningless requirement empty render would cases, in which cases it made a would have to divine some and we Dickey diffеrence for [factfinder].” dissent). 864) (1986) Beasley (Judge of the trial respectfully majority’s dissent from the affirmance opera-
court’s admission of the scientific reach that affirmance. testimony, employed tor’s and the rationale Decided December E. Frey,
William III, Solicitor,
John C. Carbo
72614. PRUITT v. TYLER.
(351 SE2d Banke, Chief Judge. colli- personal injury
This action from automobile con- summary sion. The moved for based plaintiff injury” within tention that suffered a “serious precluded of OCGA and was thus meaning rеcovering OCGA 33-34- damages for noneconomic loss (a). The plaintiff appeals grant of that motion. plaintiff interrogatories submitted admitted bones, broken wages, that she had suffered lost expenses that her medical scars a result of accident and $99; it was on the basis these admissions totalled