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Priebe v. State6/6/2001
ensor result along with his statement that Priebe had had more to drink, amounted to evidence of an alcosensor test result for Priebe. And because alcosensor results are inadmissible, so should be this evidence. SeeChannell v. State (alcosensor results inadmissible without proper foundation where results used to indicate blood-alcohol level). Priebe did not make a hearsay objection, and the passenger was not a witness at trial.
The statement by the passenger on the tape was clearly hearsay. The truth of his statement depended on his veracity and competency, and he was not available for cross-examination at trial. See OCGA § 24-3-1; Faircloth v. State (because the reliability of a hearsay statement depends on the veracity of the declarant, the inability to cross-examine an unavailable declarant at trial renders the statement inadmissible). And hearsay evidence has no probative value even when admitted without objection.Germany v. State. Further, no proper foundation had been laid as required by Channell for any alcosensor results, and therefore, this evidence in addition to the hearsay was inadmissible.
Nor was the statement part of the res gestae as argued by the State. Statements made after the end of the events to which they pertain are not part of the res gestae. OCGA § 24-3-3. As explained by this Court,
What the law altogether distrusts is not after-speech but afterthought. In cases when a statement is narrative rather than exclamatory, the circumstances must be closely scrutinized, because narrative is generally the result of afterthought. If the declarations appear to spring out of the transaction -- if they elucidate it -- if they are voluntary and spontaneous, and if they are made at a time so near to it, as reasonably to preclude the idea of deliberate design, then they are to be regarded as contemporaneous. However, no precise time can be fixed a priori when the res gestae ends, but each case must turn on its own circumstances, the inquiry being rather into events than to the precise time which has elapsed. (Citation and punctuation omitted.) Brantley v. State.
In this case the passenger could easily be guilty of afterthought when he made the statement that he had not had as much to drink as Priebe. He had just seen his friend arrested and the police were asking him about his own drinking in connection with his desire to drive the car away from the scene. Any other response would not achieve the goal.
If inadmissible hearsay is introduced, the decision below must be reversed unless it is highly probable that the error did not contribute to the jury's verdict. Blackstock v. State. The passenger's statement combined with his alcosensor results directly implies that Priebe had consumed a quantity of alcohol approaching or exceeding the legal limit. See OCGA § 40-6-391 (a) (5). Therefore we cannot say that the passenger's statement and alcosenser results did not contribute to the verdict.
2. Because of our holding in Division 1, Priebe's remaining enumeration of error is moot.
Judgment reversed. Pope, P. J., and Mikell, J., concur.
D.U.I. Fulton State Court. Before Judge Porter.
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