☢ test - Í

substance naturally excreted by the human body does not violate a defendant's right against self-incrimination under the Georgia Constitution.’). The right to refuse to submit to state administered testing is not a constitutional right, but one created by the legislature. Id. The choice provided by the statute at question is not coercive because it is not ‘so painful, dangerous, or severe, or so violative of religious beliefs’ that no real choice exists. South Dakota v. Neville, 459 U.S. 553, 563, 103 S.Ct. 916, 74 L.Ed.2d 748 (1983). Nor do we conclude that the statute is so misleading or incomplete that no real choice exists. This is not a case where the legislature has ‘subtly coerced [a defendant] into choosing the option it had no right to compel, rather than offering a true choice.’ Id. at 563, 103 S.Ct. 916; Wessels v. State, 169 Ga.App. 246(1), 312 S.E.2d 361 (1983). The Georgia Constitution allows the state to compel blood and breath testing without warning that the results may be used against a defendant at trial. Allen, supra; Green, supra. ‘Given, then, that the offer of taking a blood- alcohol test is clearly legitimate, the action becomes no less legitimate when the State offers a second option of refusing the test, with the attendant penalties for making that choice.’ Neville, supra. As we stated in Allen, ‘The legislature grants the right and determines its nature. By limiting the right in its creation, the legislature has not negated the right.’ Allen, supra.” 2. “[Defendants] also argue that the legislature's inclusion of a warning in the implied consent notices given to boaters suspected of boating under the influence of alcohol pursuant to OCGA § 52–7–12.5 that test results may be used against suspects at trial shows that the legislature recognized that not including such a warning would violate due process. OCGA § 52–7–12.5 is similar to OCGA § 40–5–67.1, except for inclusion of the additional warning, and was enacted after OCGA § 40–5–67.1. However, there is no evidence that the legislature added the language to OCGA § 52– 7–12.5 because it perceived a potential violation of due process. Thus, the trial courts did not err in upholding the constitutionality of the statute on that ground.” Accord, State v. Sherrill , 247 Ga.App. 708, 545 S.E.2d 110 (January 29, 2001). Love v. State, 271 Ga. 398, 517 S.E.2d 53 (June 1, 1999). “During its 1997 legislative session, the Georgia General Assembly passed the Forensic Sciences Act, which made the APA inapplicable to the methods of evidence-testing adopted by the GBI's Division of Forensic Sciences. OCGA § 35-3-155. [Defendant] asserts that the 1997 legislation cannot be applied to his 1996 [implied consent] test results.” Held, retroactive application of the change did not violate ex post facto. “While OCGA § 35-3-155 was passed after the commission of the offense for which [defendant] was tried, it did not inflict a greater punishment than was permitted by the law in effect at the time of the offense; it did not make criminal an act which was innocent when done; it did not change the quality or degree of [defendant’s] offense; it did not require less or different evidence than required at the time of the offense; and it did not deprive [defendant] of any substantial right or immunity he possessed at the time of the offense. See Todd v. State, 228 Ga. 746, 751-752, 187 S.E.2d 831 (1972). The statute did ‘“nothing more than admit evidence of a particular kind in a criminal case upon an issue of fact which was not admissible under the rules of evidence as enforced by judicial decisions at the time the offense was committed.” [Cit.]’ Id. at 751, 187 S.E.2d 831. Accordingly, OCGA § 35-3-155 does not violate ex post facto constitutional provisions and is applicable to the case at bar. Price v. State, 269 Ga. 222(4), 498 S.E.2d 262 (1998). See also State v. Martin, 266 Ga. 244(3), 466 S.E.2d 216 (1996). The failure to suppress the test results was not error.” 7. EVIDENCE West v. State, 300 Ga.App. 583, 685 S.E.2d 486 (October 23, 2009). In defendant’s DUI prosecution, trial court properly allowed officer to express his opinion, based on his operation of the intox machine and the inspection certificates, that the machine was “in good working condition.” “This evidence belies West's contention that the officer's testimony concerning the machine being in good working order was speculative.” State v. Cato, 289 Ga.App. 702, 658 S.E.2d 124 (January 25, 2008). Trial court erred in granting defendant’s motion to suppress, based on improper reading of implied consent warning. “The officer did not have the card at the hearing, and instead read into evidence language from an implied consent notice card provided by the state. The officer testified that the language she read into evidence was the same language she had read to Cato. On cross-examination, Cato’s attorney showed that the card from which the officer had read to Cato was dated 07/01, while the card from which the officer had read language into evidence was dated 06/05 .” Held, “the trial court erred in finding there was no evidence of the contents of the card the officer read to Cato. Notwithstanding the date discrepancy between the cards at issue in this case, the officer testified that the language she read into evidence was the same language she read to Cato at the time of his arrest. We find that such language accurately informed Cato of the applicable implied consent notice.” Following Jones v. State, 285 Ga.App. 352, 353(2)(a) (646 S.E.2d 323) (2007) (State could prove accuracy of implied consent warning “with testimony that the officer’s lost card contained the same language as another card introduced into evidence”); distinguishing Miller (April 28, 1999), below (“officer’s conclusory statement that he had read a warning contained on a card was insufficient for the State to meet its burden of proving compliance with OCGA § 40-5- 67.1”).

Made with FlippingBook Ebook Creator