Holmes v. State
Holmes v. State
Opinion of the Court
Convicted of driving under the influence of alcohol (OCGA § 40-6-391 (a) (1)) and driving on the wrong side of the road (OCGA §§ 40-6-40 (a) and 40-6-1), appellant complains of the denial of his motions to suppress, in limine, and for directed verdict.
1. Appellant was involved in an automobile accident in which his car crossed the centerline and crashed into an oncoming car. Appellant was taken to the hospital with serious injuries. The state trooper investigating the accident arrived later and testified unequivocally
Even where there are conflicts in the evidence as to whether a defendant was advised of this right to an additional test, resolution of the question of credibility is for the trial court. Rogers v. State, 180 Ga. App. 310 (348 SE2d 888) (1986), citing State v. Dull, 176 Ga. App. 152, 153 (335 SE2d 605) (1985). Where, as here, there is no direct conflict, but merely a failure of recollection by the accused, the trial court did not err in denying the motion and admitting the test. State v. Greene, 178 Ga. App. 875 (2) (344 SE2d 771) (1986); Hunter v. State, 143 Ga. App. 541 (1) (239 SE2d 212) (1977).
Even if, as appellant seems to allege, he was unconscious or semiconscious, and thereby incapable of refusing to consent to the test, the results of the test were nevertheless admissible. OCGA § 40-5-55 (b); Rogers v. State, supra; Rogers v. State, 163 Ga. App. 641, 643 (1) (295 SE2d 140) (1982).
The denial of the motion to suppress was not error.
2. The motion in limine was based on the same ground urged in the first enumeration and is disposed of by the ruling in Division 1.
3. Appellant’s motion for directed verdict was based solely on the alleged failure to prove chain of custody of the blood sample. On appeal, for the first time, appellant contends that the state also failed to comply with the statute-provided chain in OCGA § 45-16-46. No objection on this ground was made at the time of the tendering of the sample or in the motion for directed verdict and was therefore waived. Williams v. State, 255 Ga. 97, 100 (4) (335 SE2d 553) (1985); Little v. State, 178 Ga. App. 268, 269 (1) (342 SE2d 712) (1986).
Regarding the actual chain of custody, the evidence showed that the trooper who requested the taking of the sample witnessed its taking by the lab technician who sealed the vial, initialed the seal and handed the vial to the trooper. The trooper then carried it to the patrol station and the radio operator placed it in a refrigerator where it stayed until she handed it to the coroner who delivered it to the state crime lab in Atlanta. The lab chemist stated that when he took the sample from the drop box used for the receipt of blood samples, the vial was still sealed and did not appear to have been tampered with.
Mere suspicion that others may have had access to the sample is not enough to exclude it. The circumstances of the case need only
Since the purported newly discovered evidence, presented to the court by way of Johnny Peeples’ affidavit, was not in fact newly discovered, the denial of the motion was not in error. OCGA § 5-5-23; Bissell v. State, 157 Ga. App. 711, 714 (8) (278 SE2d 415) (1981).
Judgment affirmed.
Concurring Opinion
concurring specially.
I concur fully with all of the opinion except as to Division 3. Since, as stated in the majority opinion, no objections were made below and since the contentions are advanced for the first time in the appellate court, the enumerations presented as to the motion for directed verdict could not be considered further.
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