Vandiver v. State , 207 Ga. App. 836 ( 1993 )

Beasley, Presiding Judge.

Vandiver was convicted of driving under the influence of alcohol (OCGA § 40-6-391), driving with a suspended license (OCGA § 40-5-121), and driving with an open container (OCGA § 40-6-253). He appeals.

Deputy Sheriff Daniel testified that on December 7, 1991, while on duty in a patrol car, he encountered two vehicles parked on the side of the road at an intersection. One, a Cutlass owned by Vandiver, was partially in the roadway and Vandiver was standing at the passenger’s side. His wife Julie was inside in the passenger’s seat. Crystal Cherry was standing at the passenger’s side of the other vehicle, a limousine, and the passenger’s seat was occupied by a “Hispanic male.” Daniel radioed headquarters that he was going to investigate suspicious persons, turned his car around and returned to the intersection.

Observing that Vandiver held an open beer bottle, the deputy radioed for back-up help. When Officer Brumbalow arrived “two or three minutes” later, they approached Vandiver and asked for his driver’s license and proof of insurance. Although Daniel did not see Vandiver drink from the beer bottle, he detected an odor of alcoholic beverage on his breath and described him as “real talkative.” In the back seat of Vandiver’s car, he saw a still-cold empty beer bottle and two beer cases, one empty and the other containing three or four unopened bottles.

An alcosensor test of Vandiver’s breath was positive, so Daniel placed him in the back of the patrol car, ran a check on his driver’s license and called for a wrecker. He then took Vandiver to jail, where there was an Intoximeter 3000 machine and a qualified operator; he read the implied consent warning, but Vandiver refused to blow into the machine.

1. Appellant asserts that the court erred in allowing evidence of his refusal to take the state-administered blood alcohol test because the arresting officer failed without cause to read the implied consent warning at the time of his arrest as required by OCGA § 40-6-392 (a) (4). He relies upon Perano v. State, 250 Ga. 704, 708 (300 SE2d 668) (1983), in which the Supreme Court held that “where a law enforcement officer requests a person to submit to a chemical test because of acts alleged to have been committed while operating a motor vehicle [while] under the influence of alcohol or drugs, and the officer arrests that person on this ground, OCGA § 40-6-392 (a) (4) . . . requires that the officer inform him at the time of arrest of his right to an independent chemical analysis to determine the amount of alcohol or drugs present in his blood. Under ordinary circumstances, where this advice is not given at the time of arrest, or at a time as close in proximity to the instant of arrest as the circumstances of the individual case might warrant, the results of the state-administered test will not be admissible at trial to show that the accused was driving under the influence of alcohol or drugs. Further, where, in the ordinary situation, this advice is not given at the time of arrest, the state may not use the accused’s refusal to submit to the state-administered test to suspend his driver’s license under OCGA § 40-5-55 (c).” Perano did not address the admissibility, at the criminal trial, of a defendant’s refusal to take a breath test.

Nevertheless, Perano requires reversal. It construed OCGA § 40-6-392 (a) (4) narrowly, to mean almost literally what it said. The broader view of the two dissenters, which would have allowed the information to be given prior to the police request to take the intoximeter test, at a meaningful time in proximity to arrest was rejected. The Court ruled that failure to timely inform renders the state-administered test results inadmissible as evidence, where defendant took that test; it also precluded license suspension for refusal to take the state-administered test, where defendant refuses the test.

Although the Court did not address the effect of the failure on the admissibility of the refusal, under OCGA § 40-6-392 (d), in a prosecution for driving under the influence, it must follow that such is inadmissible also. If test results are inadmissible against defendant because of the invalid procedure, then so is the refusal inadmissible against him, because the refusal is justified. A defendant is not required to take the test if he has not been properly informed of his implied consent rights.

Vandiver was not informed at the time of his arrest, and there were no peculiar circumstances to warrant a delay. There were such peculiar circumstances in Perano, as we ruled on remittitur. Perano v. State, 167 Ga. App. 560 (1) (307 SE2d 64) (1983). In Vandiver’s case, however, the officer testified without contradiction that after defendant was arrested and put in the back seat of the patrol car, he ran a check on his driver’s license, called and waited for a wrecker to come and pick up defendant’s car, and then took him to jail before he gave the required information. He testified that there was no reason for its not being given earlier other than that it is their standard practice to wait until they get to the jail.

The refusal in this case, having been justified, was not subject to the evidentiary rule of subsection (d).

2. Appellant is entitled to a new trial, without that evidence. Even in its absence, he would not have been entitled to a directed verdict on either of the grounds he advances. See Wood v. Hamilton, 109 Ga. App. 608, 612 (7) (137 SE2d 61) (1964).

Judgment reversed. McMurray, P. J., Carley, P. J., Cooper, Andrews, Johnson and Blackburn, JJ., concur. Pope, C. J., and Birdsong, P. J., dissent.