Johnson v. State , 125 Ga. App. 607 ( 1972 )

Evans, Judge.

The defendant was tried and convicted under an accusation charging him with the misdemeanor offense of operating a motor vehicle while under the influence of intoxicants. A motion for new trial was thereafter filed, amended, and after a hearing, overruled. The appeal is from the judgment of conviction and sentence and also the overruling of defendant’s motion for new trial. The enumerations of error are to: 1. Overruling the motion for new trial on the general grounds; 2. Permitting a witness for the State to testify over objection that the defendant did not take an intoximeter test after his arrest, thereby giving the statute requiring such test an unconstitutional application, because no person shall be compelled to give testimony tending in any manner to incriminate himself under the State and Federal Constitutions; and 3. Denial of a motion for mistrial made after the court interrupted defendant’s counsel during his final summation, and instructed the jury as to certain phases of the Georgia law in regard to speed limit, driving to the left of the center line of a public street, and the placing of right of way signs on public streets. It was contended that said interruption was prejudicial to the defendant. Held:

1. In order to convict' one for operating a motor vehicle under the influence of intoxicants it must be shown (1) that he was under the influence of intoxicants, and (2) that he was so affected thereby as to make it less safe to operate such motor vehicle than it would be if he were not affected by such intoxicants. The evidence was sufficient to support the verdict in that a police officer testified that defendant was under the influence of intoxicants and was therefore an unsafe driver, in his opinion. There is no merit in the general grounds of the motion for new trial.

2. While our State and Federal Constitutions do not allow self-incriminating statements in evidence, over the objection of defendant, the results of properly administered breatholizer or intoximeter tests have not yet been placed in the category of an incriminating statement. This is perhaps because the law authorizes the individual citizen to take • or refuse such tests, at peril of losing his driver’s license. See 1968 amendment to the Uniform Traffic Act as to driving on highways which authorizes the use of said tests (Ga. L. 1968, pp. 448-455). And while we find no Georgia statute or decision dealing with the question, our sister state of Florida has made it very plain that it is illegal to admit in evidence testimony showing the refusal of a defendant to take said tests (Gay v. City of Orlando (Fla.) 202 S2d 896). This case discusses two Federal decisions bearing on this question: Griffin v. California, 380 U. S. 609 (85 SC 1229, 14 LE2d 106), and Schmerber v. California, 384 U. S. 757 (86 SC 1826, 16 LE2d 908). The ruling of the Griffin case, supra, was that the prosecutor in a State criminal trial could not comment to the jury upon a defendant’s failure to testify as to matters which he can reasonably be expected to deny or explain because of facts within his knowledge and that the court could not comment as to the accused’s silence as evidence of guilt, citing Malloy v. Hogan, 378 U. S. 1 (84 SC 1489, 12 LE2d 653). The refusal to take such tests is not relevant to the question of guilt or innocence although the statute itself authorizes the results to be allowed in evidence and creates a presumption in certain situations. It has likewise been held in this court that the prosecutor is not permitted to refer to the fact that the defendant has not made a statement, although he may comment on the failure of the accused to produce rebuttal testimony of evidence introduced by the State. See Saffold v. State, 11 Ga. App. 329 (75 SE 338). In Dennis v. State, 226 Ga. 341 (175 SE2d 17) the Supreme Court, while holding a similar statute in regard to weight limitations upon the highway constitutional, has held that the operator of the vehicle does not forego his constitutional protection against self-incrimination. At page 343 we find the following: "He merely breaches the condition upon which his right to operate the motor vehicle is predicated and the right can be terminated for a period of not more than 90 days. This does not violate his constitutional protection against self-incrimination.” The defendant here did not knowingly waive his constitutional protections against self-incrimination but on the contrary, insisted upon it both by not taking the test and again at the trial by objecting to the introduction in evidence of the fact that he refused to take the test. The court erred in allowing the officer to testify that defendant was offered the test and refused it, as a part of the circumstances which took place in the presence of the officer at the particular time. The enumeration of error complaining of allowance of this testimony is meritorious and requires the grant of a new trial.

3. Following an objection of the solicitor to certain argument of counsel for the accused the court made a statement to the jury as to the application of the laws of the State within the city limits of Brunswick, to which counsel objected and moved for mistrial based on the court’s intervention in the argument of counsel for defendant. The objection was not to the substance of the statement but to the court’s intervention at that time. The appellant has cited no authority for the granting of the motion for mistrial and we find no harmful error in the court making the statement to the jury following colloquy by the court and counsel, although no ruling was made directly as to the objection made to the argument. Finding no error, the court did not err in denying the motion for mistrial, and. the error enumerated thereon is not meritorious.

Submitted January 3, 1972 Decided March 2, 1972. William R. Killian, for appellant.

Judgment reversed.

Bell, C. J., Jordan, P. J., Deen, Quillian and Clark, JJ, concur. Hall, P. J., Eberhardt and Pannell, JJ, dissent.