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McGinn v. State7/9/2004
A Floyd County jury found James J. McGinn guilty of underage DUI (excessive BAC [FN1]). On appeal, McGinn's sole claim of error is that the trial court erred in denying his motion in limine premised upon the arresting officer's failure to provide him with an independent chemical test of his blood after he requested one. We agree and reverse.
FN1. Blood Alcohol Content.
The facts of this case do not appear to be in dispute. Floyd County Police Officer T. Raykovics was dispatched to investigate a vehicular wreck on Georgia Highway 101 involving a beige Toyota Camry that had gone into a ditch; when he arrived, he saw two young males removing a case of beer from the trunk of the Camry. McGinn was behind the driver's wheel of the vehicle; another male was in the passenger side of the front **210 seat. The officer saw what he determined to be a rolling paper on the seat of the Camry. Officer Raykovics noted that the driver and the three passengers "appeared to be young. I couldn't determine the age at the time."
The officer approached McGinn and smelled a strong odor of an alcoholic beverage emanating from his person. McGinn's eyes were bloodshot, and his speech was slurred. Officer Raykovics began to *451 question him about the beer in the trunk and the accident in general. According to the officer, it was at this point that McGinn stated that "he knew somewhat of the law and that he wanted to have a blood test"; "he did say that he knew he had a right to a blood test." McGinn had neither been placed under arrest nor read the implied consent warnings. Officer Raykovics informed McGinn that if, pursuant to investigation, it was suspected that drugs were involved, the officer himself would seek a blood test.
Officer Raykovics then requested that McGinn blow into an Alco-Sensor, which registered positive for alcohol. The officer placed McGinn under arrest for driving under the influence of alcohol and read him the implied consent warnings for those under age 21. The officer requested a breath test, and McGinn agreed to take one; he was transported to the county police station. While Officer Raykovics was entering identifying information into the intoxilyzer, McGinn again brought up securing a blood test; the officer testified that McGinn
wanted to know if a blood test conducted last week by an employer could be used, and I advised him that could not be used, and then he mentioned if--when he returned back to Atlanta if he could have a blood test done at that time if that could be used, and I advised him that could not be used.
A subsequent intoxilyzer breath test showed McGinn to have a 0.119 BAC. An independent chemical test of McGinn's blood was not conducted. Held:
OCGA § 40-6-392(a)(3) provides that a person who is accused of DUI and who undergoes a chemical test at the request of a law enforcement officer has the right to have a qualified person of his own choosing administer an additional test. Law enforcement officers have a corresponding duty not to refuse or fail to allow an accused to exercise that right. A trial court must determine whether the failure or inability to obtain the additional test is justified, and in making that determination, the court determines whether, "under the totality of the circumstances, the officer made a reasonable effort to accommodate the accused who seeks an independent test." [FN2] If an individual requests an independent test but is unable to obtain it, "the results of the State-administered test cannot be used by the State as evidence against him unless the failure to obtain the test is *452 justified." [FN3]
FN2. (Citations and punctuation omitted.) State v. Button, 206 Ga.App. 673, 674, 426 S.E.2d 194 (1992).
FN3. Id.
A request for an independent chemi
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