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Priebe v. State6/6/2001
July 25, 2001: Opinion of June 6, 2001 is vacated. This is a substitute opinion.
Following a jury trial, Bradley Ernest Priebe appeals his conviction for driving under the influence of alcohol, contending that the trial court erred by denying his motion in limine. Priebe also contends that the trial court impermissibly rushed the jury into rendering a verdict. For the reasons set forth below, we reverse.
On January 2, 1999, police officers observed Priebe's vehicle passing by a police roadblock, despite their motioning and yelling for the vehicle to stop. An officer followed the vehicle into a parking lot and confronted Priebe. The officer administered several field sobriety tests and thereafter arrested Priebe for driving under the influence of alcohol and disobeying an officer. The stop was videotaped by a camera in the officer's vehicle.
Before the trial began, Priebe and the State agreed to redact the portion of the videotape that showed the results of Priebe's alcosensor test. Priebe made an oral motion in limine to also redact a portion of the videotape in which a passenger in Priebe's vehicle stated that he had been drinking, but not as much as Priebe, along with the portion showing that the passenger blew a .07 on the alcosensor.
1. Priebe contends that the trial court erred by denying his motion in limine to redact portions of the videotape regarding Priebe's passenger. We agree.
The videotape itself was not shown to the judge during the hearing on the motion. But, both defense counsel and the prosecutor agreed that the contested portion of the tape showed the police in a conversation with the passenger about whether he was sober enough himself to drive Priebe's car away from the scene of the arrest. Both parties further agreed that the officer asked the passenger if he had been drinking and that the passenger replied that he had, but not as much as Priebe. The officer then gave the passenger an alcosensor test, and the tape shows that the alcosensor recorded a .07 blood-alcohol level. These facts were not in dispute and the trial judge considered the motion without viewing the tape. At trial, before the relevant portion of the tape was played for the jury, defense counsel renewed his objection. Although the tape was played for the jury, the State did not admit it into evidence, and it is not a part of the record.
Based on these facts, Priebe properly objected to the contested portion of the videotape and we are able to review this enumeration of error without having a copy of it. Priebe actually objected more than necessary under the circumstances. There is no requirement that a party object at trial in order to preserve for appeal the denial of a motion in limine. Harley-Davidson Motor Co. v. Daniel.
Second, the parties agreed on the contents of the disputed portion of the videotape and those contents are not in issue; the only issue is whether the disputed portion of the tape should have been admitted. Accordingly, we may address the issue of whether those portions of the tape should have been admitted even though we do not have the tape itself. OCGA 5-6-41 (f) supports this conclusion. It allows parties to stipulate to events at trial where the transcript or record does not truly or fully disclose what transpired at trial. Also, both this Court and the Supreme Court typically take parties at their word, if they agree, on the contents of documents and pleadings, where the actual contents are not in issue. See e.g., Williams v. Williams; Plantation Pipeline Co. v. Royal Indem. Co.; Evans v. State.
Priebe's objection to the disputed portion of the tape is, essentially, that the passenger's alcos
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