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Hernandez v. State6/30/1999
Herminio Hernandez appeals his convictions of driving while under the influence of alcohol to the extent that it was less safe to drive, driving without a license, and driving without use of a safety belt.
DeKalb County police officer Yarbro was patrolling Buford Highway at approximately 4:00 a.m. on June 8, 1997, when he observed Hernandez operating a car. Hernandez was not wearing a seat belt, the car's headlights were off, and the car was weaving in and out of its lane. After Yarbro initiated a traffic stop, he discovered that Hernandez' native language is Spanish although he speaks "broken" English. Yarbro was able to communicate with Hernandez to an extent, as the officer speaks "broken" Spanish. Hernandez had no driver's license, a strong odor of alcoholic beverage was on his breath, and he otherwise appeared intoxicated. As a result, Yarbro administered a series of field sobriety tests which Hernandez performed unsatisfactorily. Yarbro then arrested Hernandez for DUI, read him his implied consent warnings, and asked that he submit to a chemical test of his blood. Hernandez responded negatively by shaking his head from side to side and saying no. With the exception of the implied consent warnings, which were read to Hernandez entirely in English, the officer and Hernandez communicated in a mixture of rudimentary English and Spanish.
After Hernandez testified through an interpreter that he had not understood his implied consent warnings, the State was allowed over defendant's objection and motion for mistrial to impeach Hernandez by questioning him concerning two prior DUI arrests during which chemical tests had been performed on his bodily substances. Hernandez admitted that his implied consent warnings had been read to him during one arrest and, as to the other, he testified that he could not remember. Held:
1. In Hernandez' first enumeration of error, he contends that the court's admission of evidence of his prior DUI arrests for impeachment purposes was error.
Evidence that Hernandez had submitted to state-administered chemical tests during two prior DUI arrests established that he had been given his implied consent warnings on these two prior occasions, because such tests may only be administered after the accused has been given the warnings. OCGA § 40-5-67.1 (b); Long v. State, 185 Ga. App. 277, 278 (1) (363 SE2d 807) (1987). The trial court was authorized to find that Hernandez opened the door to being questioned on this subject, that the fact that he had submitted to chemical tests after having been given the warnings twice before increased the likelihood that he understood the warnings on this occasion, and that the probative value of the elicited testimony outweighed its prejudicial effect. We find no abuse of discretion.
There is no merit in Hernandez' complaint that certified copies of his DUI convictions should have been admitted. This amounts to a best evidence objection, which was not raised at trial and was therefore waived. Moret v. State, 246 Ga. 5, 6 (3) (268 SE2d 635) (1980). Moreover, the State was seeking to impeach Hernandez with evidence concerning the circumstances of his arrest, not his criminal conviction. Therefore, the State was not required to prove the conviction, by introducing a certified copy or otherwise. See Wadsworth v. State, 209 Ga. App. 333, 334 (5) (433 SE2d 419) (1993); compare Hood v. State, 179 Ga. App. 387, 389 (1) (346 SE2d 867) (1986).
2. In Hernandez' second enumeration, he contends that the trial court erred in its charge to the jury. An understanding of the issues raised requires a brief review of certain aspects of Georgia's implied consent laws.
OCGA § 40-5-55 (a) sta
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