Bass v. State6/10/1999
hat Bass was not free to leave even before the administration of the alcosensor tests and, therefore, the reading of the notice was done at the "time of the arrest" as required by OCGA §§ 40-5-55, 40-5-67.1 (a), and 40-6-392 (a) (4) and not before arrest.
In reviewing the trial court's denial of Bass' motion, we construe the evidence on the motion in favor of the trial court's findings and judgment and adopt the trial court's findings on disputed facts and credibility unless those findings are clearly erroneous. Frisbey, supra at (1). Here, although Bass contends that he did not understand the trial court's factual ruling and argues for a different factual Conclusion as to the time of arrest, we do not find the trial court's Conclusion in this regard clearly erroneous. Therefore, there is no basis for this court to reverse the trial court's Conclusion and the Intoxilyzer results were properly admitted.
4. Finally, Bass contends that the trial court erred in allowing evidence of the alcosensor test results because the proper foundation was not laid, based on Gray v. State, 222 Ga. App. 626, 628 (1) (476 SE2d 12) (1996).
In order to lay the foundation for admission of the alcosensor, the prosecutor asked Officer Wright if, by training and experience, he knew that the design of the alcosensor had been approved by the Division of Forensic Sciences of the GBI for use in detecting the presence of alcohol in a person's body. He responded, "As far as I know, yes, because every patrol car and every officer that I know uses an Alcosensor."
Assuming, without deciding, that this answer was insufficient to prove the required foundation, we find, given the totality of the evidence, it is highly probable that this did not affect the jury's verdict and it does not constitute reversible error. Mealor v. State, 233 Ga. App. 193 (1) (504 SE2d 29) (1998); Knapp v. State, 229 Ga. App. 175, 179 (5) (493 SE2d 583) (1997).
Judgment affirmed. Johnson, C. J., McMurray, P. J., Pope, P. J., Smith and Eldridge, JJ., concur. Ruffin, J., concurs in part and Dissents in part.
RUFFIN, Judge, Dissenting.
I concur in the Court's opinion, except for its holding in Division 2. Venue is an essential element that must be proved by the prosecution beyond a reasonable doubt. Graves, supra at 773 (1). I remain steadfast in my belief that the testimony of the arresting officer regarding the county in which he works is not sufficient to prove venue beyond a reasonable doubt. See Frisbey, supra (Ruffin, J., Dissenting); Joiner, supra (Ruffin, J., Dissenting); Brinkworth v. State, 222 Ga. App. 288, 289 (474 SE2d 9) (1996) (Ruffin, J., Dissenting). Accordingly, I respectfully Dissent.
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