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EDGE v. STATE5/28/1997
Bradley Edge was charged in Count 1 of an accusation with driving under the influence of alcohol to the extent that it was less safe for him to drive. See OCGA § 40-6-391 (a) (1). In Count 2, he was charged with having a blood-alcohol concentration of .10 grams or more in violation of former OCGA § 40-6-391 (a) (4). A jury found him guilty on both counts. Edge appeals from the convictions entered on the verdict.
1. Edge contends the trial court erred in denying his motion in limine/motion to suppress the results of the intoximeter test when he was not advised of his implied consent rights contemporaneously with his arrest and when an officer other than the arresting officer read him the rights.
(a) Timing of the advice. An enforcement officer with the Georgia Department of Transportation ("DOT") stopped Edge on I-20 after observing him drive in the high occupancy vehicle ("HOV") lane without any passengers in his truck. See OCGA § 32-9-4 (a), (b); OCGA § 40-6-54.
As the officer approached Edge's pickup truck, he noticed that Edge's eyes were bloodshot and he smelled of alcohol. When asked if he had been drinking, Edge responded that he had consumed two sixteen-ounce containers of beer. At the officer's request, Edge handed over his driver's license and proof of insurance and stepped out of the truck. The officer walked Edge over to a retaining wall and then went back to the patrol car where he called the Georgia State Patrol to advise them he would be out of his vehicle while he conducted field sobriety tests on a suspected drunk driver. Edge performed the horizontal gaze nystagmus ("HGN"), "walk and turn," and "one-leg stand" tests. Based on Edge's performance on these tests, the officer concluded that Edge was impaired. However, the DOT officer testified that he wanted to confirm his determination that Edge was driving while under the influence of alcohol; he had been on the job for a month and this was the first time he had investigated a driver for driving under the influence . The officer called the State Patrol again, this time requesting that a state trooper be sent to the scene to conduct an alco-sensor test. About an hour and a half later, a state trooper arrived and administered the breath test. The state trooper then read Edge his implied consent rights and transported him to the county jail, where he was given an intoximeter test. In all, Edge was detained for approximately two hours before being advised of his implied consent rights.
"In order for the result of a chemical test to be admissible at trial, the suspect must be advised of his implied consent rights at a time as close in proximity to the instant of arrest as the circumstances of the individual case might warrant." (Citation and punctuation omitted.) Smith v. State, 204 Ga. App. 576, 577 (2) (b) (420 S.E.2d 29) (1992); see State v. Lamb, 217 Ga. App. 290, 291 (456 S.E.2d 769) (1995). Only in limited situations is a delay warranted, such as where advising the accused at the moment of physical arrest would not enable him to make an intelligent choice concerning the state's request and his right to undergo an independent test or where the exigencies of police work prevent giving the advice. See Perano v. State, 250 Ga. 704, 707 (300 S.E.2d 668) (1983). For example, in Clapsaddle v. State, 208 Ga. App. 840, 842 (432 S.E.2d 262) (1993), we held that a one-hour delay was not warranted in the absence of exigent circumstances, any indication that accused was too intoxicated or emotionally distraught to understand his implied consent rights, or any indication that officer was unaware the detainee would be charged with violating OCGA § 40-6-391. Likewise, in Vandiver v. State, 207 Ga. App. 836, 837-838 (1) (42
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