Perano v. State , 250 Ga. 704 ( 1983 )

Hill, Chief Justice,

dissenting.

The Court of Appeals has certified two questions to this court. Although I agree with the result of the majority decision as applied to the facts in this case and therefore might concur specially, because I respectfully disagree with the majority’s answer to the two certified questions, I must dissent.

I would answer the first certified question in the negative and would answer the second certified question in the affirmative. In my view, the General Assembly, in enacting OCGA § 40-6-392 (a) (4) (Code Ann. § 68A-902.1), did not use the word “arrest” in the phrase “at the time of arrest” in the instantaneous, technical legal sense that we have come to understand an “arrest” in Fourth Amendment cases. E.g., State v. Reid, 247 Ga. 445 (276 SE2d 617) (1981).

In my view, the General Assembly used the word “arrest” in a broader sense, meaning “custody.” Thus, as I understand the intent of the General Assembly in enacting OCGA § 40-6-392 (a) (4) (Code Ann. § 68A-902.1), it was that the defendant-motorist be advised at the time of the original custody, and prior to the time the defendant-motorist must decide whether to undergo or refuse the state-administered test, that he or she has the right to an additional test.

I respectfully submit that my answers to the two certified questions (see above) provide the defendant-motorist with full opportunity to make an intelligent choice as to whether to undergo or refuse the state test, comport with the common sense intent of the General Assembly, and provide a clear dividing line between those cases in which the result of the state-administered test is admissible or inadmissible (or the fact of the defendant’s refusal to undergo the test is admissible or inadmissible). Unfortunately, the majority’s answers require a case-by-case determination. For these reasons, I cannot agree with the answers given and therefore dissent.

I am authorized to state that Presiding Justice Marshall joins in this dissent.