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WESLEY v. STATE9/3/1997
Leon Wesley appeals his conviction on charges that he drove a vehicle under the influence of alcohol to the extent he was less safe to drive and that he failed to maintain his lane. Although he challenges the conviction on several grounds, we find no error and, for the following reasons, we affirm.
1. Wesley claims the court erred by allowing the officer to testify that he read Wesley the appropriate "implied consent" warning before he administered the Intoxilyzer 5000, which showed Wesley's breath alcohol content to be .064 percent. Prior to introducing evidence of the Intoxilyzer results, the State was required to lay a foundation including proof that the proper implied consent warning was given. See Deckard v. State, 210 Ga. App. 421, 423 (436 S.E.2d 536)
(1993). The officer testified he did not have in court his own copy of the implied consent "card" from which he read the warning, but that he always used "whichever one was in effect." The prosecutor presented him with a copy of the appropriate implied consent warning in effect at the time of Wesley's arrest, and the officer testified that, "the best remember ," he gave that very warning.
Although Wesley argues the officer's vague testimony is insufficient to show he read the proper warning, we find no error. If the officer's testimony was unclear or contradictory, those factors went to its weight and credibility but do not affect its sufficiency on appeal. Lee v. State, 188 Ga. App. 406 (4) (373 S.E.2d 28) (1988). " redibility as it relates to the admissibility of evidence is an issue for the trial court; a trial court's findings as to credibility will be upheld on appeal unless clearly erroneous. [Cit.] The trial court's implied finding that the foundation witness was credible was not clearly erroneous." Dunn v. State, 218 Ga. App. 329, 330 (461 S.E.2d 294) (1995).
2. Wesley enumerates as error the trial court's failure to grant his motion for mistrial based on the admission of the Intoxilyzer results. The results were admitted with no objection other than that discussed in Division 1. At the close of the State's evidence, however, Wesley's counsel moved for mistrial, claiming his cross-examination of the officer had shown the officer did not "possess a valid permit issued by the Division of Forensic Sciences" to operate the machine, as required by OCGA § 40-6-392 (a) (1) (A). We find nothing to review, as the motion for mistrial was untimely. See Benjamin v. State, 211 Ga. App. 670, 672 (2) (440 S.E.2d 259) (1994) (motion for mistrial must be made "contemporaneously with the alleged misconduct").
3. Wesley also moved for and was denied a mistrial after the officer testified he requested Wesley submit to a blood sample, which he stated "would have not only been checked for alcohol but narcotics as well." Wesley claims this testimony wrongly impugned his character by implying he was under the influence of drugs at the time the officer stopped him. The trial court denied the request for mistrial but instructed the jury, "the Defendant in this case is not charged in any way whatsoever with any kind of possession or use of drugs. Therefore, any testimony you hear concerning drugs you'll simply disregard completely. . . ." Wesley claims these curative instructions were insufficient and argues the jury was so prejudiced by the statement that a mistrial was required.
Even if we assume the officer's remarks, which amounted to no more than an expression of the officer's suspicions, impugned Wesley's character, we find no error. But see Coker v. State, 207 Ga. App. 482, 483 (2) (428 S.E.2d 578) (1993), in which this Court doubted that a witness had impugned an armed robbery defendant's charact
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