State v. Carter
State v. Carter
Opinion of the Court
The state appeals the trial court’s grant of the defendant’s motion to suppress the results of an intoximeter breath test in her prosecution for driving under the influence.
The arresting officer testified that the defendant was informed of her “implied consent” rights at the time of her arrest in accordance with OCGA § 40-6-392 (a) (3), (4) and that she declined the optional
The affirmative waiver requirement set forth in Steed has since been “disavowed” by this court in an opinion written by the judge who authored Steed. See State v. Dull, 176 Ga. App. 152 (335 SE2d 605) (1985). We also reaffirmed, in Dull, our previous holdings that “[w]here there is a conflict over whether a defendant was advised of his right to an additional test, resolution of the question of credibility is for the trial court.” Id. at 153. See also Hunter v. State, 143 Ga. App. 541 (239 SE2d 212) (1977); Rayburn v. State, 140 Ga. App. 712 (231 SE2d 383) (1976).
In the present case, the state’s evidence would have satisfied even the now discredited affirmative waiver requirement which Steed purported to impose. It follows that the motion to suppress should have been denied.
Judgment reversed.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.