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Maurer v. State9/24/1999
After a bench trial, Maurer was found guilty of DUI with an unlawful alcohol concentration and to the extent that it was less safe to drive, as well as following too closely. He appeals his convictions. Among other things, we are asked to determine whether there was probable cause for Maurer's DUI arrest and justification for State-administered breath tests.
Fulton County police officer Inman was dispatched to a multi-vehicle intersection collision. He ascertained that Maurer had been operating a vehicle that had rear-ended a stationary vehicle, propelling it into another. Maurer's vehicle sustained extensive damage. While questioning Maurer, the officer detected a strong odor of alcoholic beverage about his person and observed that Maurer had bloodshot eyes, a flushed face, slurred speech, and an unsteady walk.
Because of his observations, Inman asked Maurer to submit to a series of field sobriety evaluations. Testimony given by Inman showed that Maurer performed these evaluations in an erratic manner, as by transposing letters during his recitation of the alphabet. Inman thereupon arrested Maurer for DUI, gave him implied consent warnings, and obtained his consent to the performance of a State-administered chemical test of his breath. The results of sequential tests administered with an Intoxilyzer 5000 machine showed an alcohol concentration of .221 grams and .227 grams.
1. Maurer first contends the court erred in ruling that the prosecution was not required to comply with his notice to produce documents relating to the Intoxilyzer (e.g., log sheets showing the results of tests performed on other subjects, service and operation manuals, inspection reports, and service and repair records).
Notices to produce under [OCGA § 24-10-26] can be used in a criminal case 'to compel production of books, writing or other documents or tangible things in the possession, custody or control' of the opposite party, the State ([prosecuting] attorney and investigating officers,) for use at trial, or at a pretrial hearing, where such books, etc., would be admissible and are needed for use as evidence on behalf of the defendant. [Cit.]
Wilson v. State, 246 Ga. 62, 64 (1) (268 SE2d 895) (1980) (footnotes omitted).
Materials such as those requested are not reasonably expected to be found in the possession, custody, or control of the prosecutor. See Fletcher v. State, 157 Ga. App. 707, 708 (3) (278 SE2d 444) (1981). At trial, the prosecuting attorney stated without contradiction that the requested documents were not in the prosecution's possession. The State was under no duty to produce these documents.
2. Maurer next charges the court with error in denying his motion to suppress. Maurer sought to suppress the results of the breath tests due to a misreading of the implied consent warning.
OCGA § 40-5-67.1 (b) (2) required Inman to inform Maurer that his driver's license might be suspended if he submitted to testing and the results indicated an alcohol concentration of .10 grams or more. When Inman read the implied consent warning at trial, he initially testified that he informed Maurer that his driver's license was subject to suspension if his alcohol concentration was .01 grams or more. But Inman later testified that he actually informed Maurer that the legal limit is .10 grams. In giving the later testimony, Inman attributed his initial testimony to a slip of the tongue caused by rapid speech.
Whether Inman gave the correct or incorrect warning was a question of fact which the court was authorized to resolve in the State's favor. Moreover, the amended version of OCGA § 40-5-67.1 (b) states that the implied consen
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