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Swain v. State7/20/2001
As amended August 8, 2001.
On the night of January 20, 2000, Carol Swain's car crossed the center line of traffic and collided head-on with another vehicle. She was charged with DUI to the extent she was a less safe driver, and a jury later found her guilty. On appeal, Swain asserts that the trial court erred in admitting evidence that she refused to consent to a blood test for the presence of alcohol because an administrative law judge (ALJ) already had ruled at her driver's license suspension hearing that she did not refuse testing. She also argues that the trial court should have charged the jury that the smell of alcohol, alone, is insufficient to prove intoxication. Because the ALJ's finding had no preclusive effect in her criminal trial, and because Swain's requested jury charge did not fit the evidence, we affirm.
1. A motorist in Georgia who is suspected of driving under the influence of alcohol and who is asked to submit to a blood test for the presence of alcohol has the right to refuse the test, and the arresting officer must inform her of that right. If she refuses to submit to the test, the Department of Public Safety may suspend her driver's license for a minimum of one year. Moreover, evidence of her refusal may be admitted at a subsequent DUI prosecution, but only if she was properly informed of her right to refuse.
In this case, the State sought to introduce testimony from the arresting officer that he asked Swain to submit to a test of her blood for the presence of alcohol, that he informed her of her right to refuse, and that she refused. Swain moved in limine to exclude this testimony, arguing that the issue of her refusal already had been decided by an ALJ at her driver's license suspension hearing. At a pretrial hearing, Swain introduced into evidence a copy of the ALJ's decision, which reversed her license suspension and found that
ll provisions were not met for the suspension . . . as to [Swain] inasmuch as the [Department of Public Safety] failed to establish that . . . t the time of the request for the test or tests, the arresting officer properly informed [Swain] of implied consent rights and the consequences of submitting or refusing to submit to such test or tests.
The trial court ruled that the ALJ's decision had no preclusive effect and that evidence of Swain's alleged refusal to submit to testing could be admitted at trial. We agree.
We have been asked several times to give preclusive effect in a criminal DUI prosecution to a judgment previously rendered at an administrative driver's license suspension hearing. Each time, we have refused. In Sheffield v. State, the defendant sought to exclude evidence that he had refused a breath test on the ground that the Department of Public Safety's administrative action to suspend his driver's license had been dismissed. The defendant argued that the dismissal "rendered any evidence of his refusal inadmissible because to admit it would deny due process and equal protection, would constitute double jeopardy, would constitute res judicata." Two judges of this court disagreed, noting that the license suspension action had been dismissed because the arresting officer had failed to appear for the hearing. Thus, " here was no determination at the administrative hearing that defendant did or did not refuse the test." In addition, the Sheffield opinion noted that because the suspension proceedings were civil in nature, "their outcome does not control the admissibility in the criminal trial of evidence of refusal [to consent to testing]."
In Hunter v. State, the DUI defendant sought to introduce into evidence a letter from an administrative heari
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