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Capps v. State6/16/2005
RUFFIN, C. J., JOHNSON, P. J., BARNES, J.
Following a jury trial, Robert Rankin Capps was found guilty of driving under the influence of alcohol ("DUI") as a less safe driver and driving without headlights. After the denial of his motion for new trial, he appeals, alleging that the State impermissibly introduced testimony regarding the numerical value of the alco-sensor test, the trial court erred in allowing the State to offer rebuttal testimony regarding the alco-sensor test, and that trial counsel was ineffective. Finding Capps' enumerated errors to be without merit, we affirm.
The evidence demonstrates that at approximately 12:52 a.m. on September 5, 2002, Capps was stopped by an officer with the Gwinnett County DUI task force because he was driving his automobile without his headlights on. When the officer approached Capps, he noticed a strong odor of alcohol coming from Capps's breath, that his eyes were bloodshot and watery, and that his speech was slurred. Capps denied that he had been drinking, but during field sobriety testing, Capps exhibited possible clues of intoxication on the horizontal gaze nystagmus ("HGN") test, the walk-and-turn evaluation, and the one-leg stand test. The officer testified that studies show that these three field tests, when evaluated together, were 91% accurate in predicting whether someone had an alcohol concentration above .08 grams, and based on his expertise and training, Capps' performance of these tests indicated he was impaired. Capps' alco-sensor test results were also positive for alcohol. Following the tests, Capps admitted to having "one beer." The officer then placed Capps under arrest for DUI as a less safe driver, and read him the implied consent notice. Capps refused to submit to a chemical breath test.
1. In two enumerations of error, Capps contends that the trial court erred by allowing the State to introduce evidence of the numerical value of the alco-sensor test. We do not agree.
"Alco-sensor results are not used as evidence of the amount of alcohol or drug in a person's blood. Instead, the alco-sensor is used as an initial screening device to aid the police officer in determining probable cause to arrest a motorist suspected of driving under the influence of alcohol." (Citation and punctuation omitted) Porche v. State, 217 Ga. App. 325-326 (1) (457 SE2d 578) (1995). Accordingly, the results are inadmissible to show the blood alcohol level revealed by the test. Id. at 326. However," vidence should be admitted if it is admissible for any legitimate purpose." Goodwin v. State, 222 Ga. App. 285, 287 (3) (474 SE2d 84) (1996). Consequently, valid results of a breath, blood, or urine test, which are otherwise determined to be inadmissible on procedural grounds, may be properly admitted for impeachment purposes. See Goodwin v. State, supra, at 287; Charlton v. State, 217 Ga. App. 842, 844 (459 SE2d 455) (1995).
During cross-examination, Capps testified that he believed he had passed the alco-sensor test and that after he blew in to the machine he saw the number and "it was below the legal limit." The State then asked Capps if he actually saw the number and Capps said "I saw .06." Defense counsel did not object to the line of questioning, and during a subsequent bench conference, the trial court ruled that Capps had opened the door to evidence about the numerical value of the alco-sensor test. Defense counsel's only response was "I understand your honor." The officer was later brought back to the stand and testified that Capps' number was not .06 as he had stated, but .089.
Capps' failure to object to the admissibility of his breath test results or any of the officer's testimony waived these
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