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Smith v. State7/16/2001
Following a jury trial, Danny Smith, Sr., appeals his convictions for driving under the influence to the extent that he was less safe, driving with an unlawful blood-alcohol concentration, and speeding. Smith now argues that: (1) his convictions for DUI must be reversed because the State failed to accommodate his request for an independent blood test and (2) his conviction for speeding must be reversed because the trial court erred by admitting the readout of a radar gun without establishment of the proper foundation for such evidence. For the reasons set forth below, we affirm Smith's conviction for speeding, and we reverse Smith's convictions for DUI less safe and driving with an unlawful blood-alcohol concentration.
Viewing the evidence in the light most favorable to the verdict, the record shows that Smith was stopped for speeding by Sergeant David Knight at 12:53 a.m. on September 26, 1998. Smith passed by Knight's motorcycle, and Knight immediately detected, by visual estimation, that Smith was traveling in excess of the 35-mph speed limit. A radar gun reading made at that point indicated that Smith was going 78 mph. Knight turned his motorcycle around and pursued Smith, and, during this pursuit, Knight, using his own speedometer, paced Smith at speeds exceeding 55 mph.
After Smith was finally stopped, Knight asked him to step out of his truck. At the scene, Knight requested that Smith assent to an Intoxilyzer 5000 breath test at the station, and he read the Georgia Implied Consent notice to Smith. After consenting to the State test, Smith stated that he wanted an independent blood test in addition to the State test. Knight subsequently informed Smith that the test would be his responsibility - that he would have to choose where and who would perform the test and pay for its cost.
Following his arrest, Smith was taken to the police station, where he submitted to the State's breath test at 1:42 a.m. The results showed that Smith's blood-alcohol level was between .198 and .207. After the State test was administered, Smith posted bond and was released at approximately 3:00 a.m. His request for an independent blood test was never accommodated.
1. Smith argues that his convictions for DUI must be reversed, contending that the results of his Intoxilyzer 5000 test should have been suppressed due to the State's failure to accommodate his request for an independent blood test. We agree.
OCGA § 40-6-392 (a) (3) provides that a person who undergoes a chemical test at the request of a law enforcement officer is entitled to have a qualified person of his own choosing administer an additional test. In general, law enforcement officers have a corresponding duty not to refuse or fail to allow an accused to exercise the right to have an independent test. And, if an individual who requests such a test is prevented from receiving it by the State, the results of the state- administered test cannot be used as evidence unless the failure to obtain the test is justified. State v. Button; see OCGA § 40-6-392 (a) (3).
OCGA § 40-6-392 (a) (3) allows one accused of driving under the influence of alcoholic beverages the right to have a chemical analysis of his blood and urine by a qualified person of his own choosing, and there is a corresponding duty on the part of law enforcement officers not to refuse or fail to allow the accused to exercise that right. While it is not the officer's duty to insure the performance of an independent test, he cannot prevent a defendant from exercising his right to such a test. The statute also states that the justifiable failure or inability to obtain an additional test shall not preclude the admission of evidence relating
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