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Hernandez v. State6/30/1999
tes that any person, who operates a motor vehicle in this State and is arrested for DUI or involved in a traffic accident resulting in serious injuries or fatalities, is deemed to have given consent, subject to OCGA § 40-6-392, to a chemical test or tests of his bodily substances to determine the presence of alcohol or drugs. OCGA § 40-5-67.1 (b) requires the arresting officer to inform the person who has been arrested that he has a right to independent tests after submitting to State testing, and that his refusal to submit to state testing may be offered into evidence against him at trial. OCGA § 40-5-67.1 thus allows the person to withdraw his implied consent by refusing to submit to testing. But OCGA § 40-5-55 (b) provides that any person who is "dead, unconscious, or otherwise in a condition rendering such person incapable of refusal" to submit to testing shall be deemed not to have withdrawn his implied consent, thereby allowing the test or tests to be administered.
In State v. Tosar, 180 Ga. App. 885 (350 SE2d 811) (1986), a non-English speaking defendant submitted to a state-administered breath test after having been read his implied consent warnings. The trial court granted his motion suppress the results on the ground that the State failed to meet its burden of informing him of his implied consent rights. We reversed. Although we concluded that a non-English speaking individual is the same as unconscious, we did not base our decision on OCGA § 40-5-55 (b). Instead, we held that the inability of such an individual to communicate with the investigating officer results in the state-administered test being admissible under § 40-6-392 (a) (3), which provides that the justifiable failure or inability to obtain an additional test shall not preclude admission of the state-administered test. We also declined the defendant's suggestion that we compel the State to print the implied consent rights in languages other than English.
Here, the trial court charged the jury under the authority of Tosar that the implied consent warning does not have to be read in Spanish to a Spanish-speaking individual.
Hernandez contends that the court erred in refusing to instruct the jury that a Spanish-speaking individual is the same as unconscious and therefore incapable of withdrawing his consent by refusing to submit to a state-administered test. But the undisputed evidence shows that Hernandez spoke some English, did communicate with the officer, and effectively withdrew his consent. No tests were performed. Therefore a charge concerning an uncommunicative defendant was not adjusted to the evidence.
In view of evidence that he did not understand the warnings, Hernandez claims error in the trial court's charge to the jury that his refusal to submit to testing could be considered as evidence creating an inference that the test would show the presence of alcohol or drugs. But the court also charged the jury that this inference is rebuttable, and Hernandez was allowed to attempt to rebut it with evidence that he did not understand the warnings. We find no error.
Judgment affirmed. Blackburn, P. J., and Barnes, J., concur.
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