State v. Nolen ( 1998 )

Beasley, Judge,

concurring specially.

I agree that the trial court’s order granting defendant’s motion in limine must be reversed. The motion should be denied. Omission of the word “and” in the particular instance focused on does not change the meaning of the warning one whit. The lengthy and detailed warning prescribed by OCGA § 40-5-67.1 (b) (1) was recited in its entirety.

With respect to the precise issue here, defendant was given two disparate items of information for him to consider in making his decision whether to seek another chemical test. One factor was that he would have to pay for it (“at your own expense”). The other factor for him to weigh was that he would select the tester (“from qualified personnel of your own choosing”). The grammatical bridge used to connect these two items is “and” in the statute. But it is inconsequential and makes no difference in what is conveyed to the defendant, whether it is stated or not. The information communicated is the same. To say “at your own expense from qualified personnel of your own choosing” makes not a hair’s breadth of difference from saying “at your own expense and from qualified personnel of your own choosing.”

Surely the law does not countenance exclusion of the scientific proof of defendant’s degree of intoxication as measured by a prescribed State-administered test on the thin thread of reasoning that the arresting officer did not in fact “read to the person the appropriate implied consent warning” as the statute requires because, as the trial judge heard it from the tape, the officer omitted the word “and.”

In the cases cited, there was significant substantive alteration in the warning. In both State v. Fielding³, and State v. Halstead⁴ the suspect was misadvised; each arrestee was told only that he could take another test, not as many tests as he wished and would pay for. Particularly because there are a number of tests available for a variety of bodily substances, a person who is suspicious of the State’s test or simply desires confirmation of its results may want a number of tests, especially in a close case. After all, the ramifications of the results often are conviction or acquittal, imprisonment or liberty, loss or retention of license. The legislature deliberately provides a broad right, an open-ended right, to the amount and variety of proof an accused can muster.

Decided September 9, 1998. Ralph T. Bowden, Jr., Solicitor, Stephanie Duncan-Brent, Joy A. Grayson, W. Cliff Howard, Assistant Solicitors, for appellant. Head, Mullís, Thomas & Webb, Thomas J. Thomas, for appellee.

Richards v. State⁵ does not describe what was not “exact” in the warning by the officer as compared with the words of the statute. It may very well have deviated from the exact meaning meant to be conveyed by the statutorily prescribed wording. In Martin v. State⁶ the warning was deficient in omitting the information that additional tests could be of various types, i.e., of the arrestee’s blood, breath, urine, or other bodily substances. (Although the warning also omitted that the personnel who performed such test or tests had to be “qualified,” the court did not dwell on that deviation.)

In this case, strict compliance was honored despite the undoubtedly inadvertent slip-of-the-tongue which occurred when the officer skipped the word “and.” He gave “the correct warning”⁷ in all of its elements and in all of its words but for the implicit conjunction “and.” The officer fully, not merely substantially, advised Nolen of all of his rights. The de minimis nature of the omission did not affect the admissibility of the test results under the statute even before amended in 1998.

Thus there is no need to consider retroactivity of the legislature’s express instruction that exact reading is not crucial “so long as the substance of the notice remains unchanged.”⁸ The issue, which due to timing was not raised in the trial court, is moot. Nor is there cause for deciding either the procedural status or the merits of the constitutional challenges, whether state or federal.

3 229 Ga. App. 675 (494 SE2d 561) (1997).

4 230 Ga. App. 208 (496 SE2d 279) (1998).

5 225 Ga. App. 777, 779 (2) (484 SE2d 683) (1997).

6 217 Ga. App. 860 (460 SE2d 92) (1995), rev’d on other grounds, State v. Martin, 266 Ga. 244 (1) (466 SE2d 216) (1996).

7 See State v. O’Donnell, 225 Ga. App. 502, 505 (3) (484 SE2d 313) (1997).

8 OCGA § 40-5-67.1, as amended March 27, 1998. Ga. L. 1998, Act 573 (HB 1378).