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EDGE v. STATE5/28/1997
9 S.E.2d 318) (1993), we held that where the accused was not informed of his implied consent rights until after he waited for a tow truck and was transported to a police station, simply because it was the department's practice to
follow this procedure, the delay was unwarranted and test results inadmissible. However, in Martin v. State, 211 Ga. App. 561, 562 (440 S.E.2d 24) (1993), a majority of this Court held that a ten-minute delay in reading implied consent rights because the officer did not have her new implied consent card was excusable. And, in Fore v. State, 180 Ga. App. 196 (348 S.E.2d 579) (1986), we held that the implied consent law was complied with where a detainee waited 20-25 minutes before being read his rights, based on the officer's need to pursue and arrest another driver coupled with the fact that the detainee probably would not have benefitted in any way by being informed of his rights any earlier.
It is clear from these cases that, in deciding whether the delay in giving implied consent advice is excusable, we consider the particular set of facts and circumstances of each case. See State v. Lubin, 164 Ga. App. 689, 692 (297 S.E.2d 371) (1982). Here, the delay resulted from the newly hired DOT officer's desire to be certain that his preliminary determination that Edge was impaired was correct. The officer contacted the State Patrol for assistance as soon as he finished administering the field sobriety tests. There is no evidence in the record to suggest either that the officer knew in advance that the state trooper's arrival would be delayed or that the time lapse was caused by any intention to deprive Edge of his rights. In fact, it appears from the DOT officer's testimony that his intent was to avoid charging Edge with driving while under the influence without having a sufficient basis therefor. Moreover, there is no evidence that Edge would have benefitted by being informed of his rights any earlier than he was. See Fore, supra.
(b) Advice given by other than the arresting officer. We do not agree with Edge that the implied consent statute was violated because the state trooper who read him his rights was not the arresting officer. See OCGA § 40-6-392; § 40-5-55. Edge reads the statute much too narrowly. Although the DOT officer made the traffic stop, wrote up the arrest report and considered himself the arresting officer, the state trooper was present during and assisted in the arrest by administering the final, determinative field test, placing Edge in his patrol car, and transporting him to jail. "[Edge] does not suggest, nor can we imagine, any detriment he may have suffered as a result of the fact that it was [the state trooper], rather than [the DOT enforcement officer], who advised him of his rights." State v. Buice, 176 Ga. App. 843, 844 (338 S.E.2d 293) (1985). No error or harm has been shown.
We note that even if the implied consent statute was not complied with and the intoximeter result therefore inadmissible, the evidence was nonetheless sufficient to authorize a conviction of the charge that Edge drove while under the influence to the extent that
it was less safe for him to do so.
2. We find no merit in Edge's contention that the trial court erred in denying his motion to dismiss because an enforcement officer with the DOT lacks authority to enforce HOV lane violations. Edge argues the enforcement and arrest powers of DOT officers extend only to those geographic areas enumerated in OCGA § 32-6-29 (b) (1), which areas do not include HOV lanes. However, OCGA § 32-6-29 (b) provides that DOT enforcement officers have those specific powers in addition to any powers or duties created by any other law. OCGA § 32-6-29 (
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