Department of Public Safety v. Orr , 122 Ga. App. 439 ( 1970 )

122 Ga. App. 439 (1970) 177 S.E.2d 164

DEPARTMENT OF PUBLIC SAFETY
v.
ORR.

45431.

Court of Appeals of Georgia.

Argued July 9, 1970. Decided September 14, 1970.

Arthur K. Bolton, Attorney General, Harold N. Hill, Jr., Execution Assistant Attorney General, Marion O. Gordon, Dorothy T. Beasley, Assistant Attorneys General, for appellant.

James W. Orr, Jr., pro se.

EVANS, Judge.

This case is almost identical on its facts with that of Burson v. Collier, 226 Ga. 427 (175 SE2d 660), recently decided by the Supreme Court, which holds that where the statute fails to set out what constitutes a complete breath alcohol test, a showing that the driver of the automobile did not complete the test within the judgment of the operator is not evidence of a "refusal to submit," within the contemplation of the statute. Ga. L. 1968, p. 448, § 47A (Code Ann. § 68-1625.1). The evidence here being that the driver has never been able to blow up a balloon since he developed emphysema, made "two efforts to blow up the required test" but could not do so, and the operator testifying that he made "two feeble attempts," it supports the ruling of the trial judge since the Burson case holds "we do not think it a salutary practice to let the intoximeter operator have an unfettered right to determine what is or is not a ``complete' test." The Burson case is controlling, requiring an affirmance of the lower court.

Judgment affirmed. Hall, P. J., and Deen, J. concur.