Bowden v. State , 202 Ga. App. 802 ( 1992 )

Carley, Presiding Judge.

Appellant was tried before a jury and found guilty of driving under the influence of alcohol and giving false information to a police officer. He appeals from the judgments of conviction and sentences entered by the trial court on the jury’s guilty verdicts.

1. Four days prior to the selection of appellant’s jury, the trial court conducted a preliminary juror orientation session for the entire array. The trial court’s refusal to allow appellant’s attorney to be present during this juror orientation session is enumerated as error.

“[J]uror orientation, whether it be through preliminary instructions to the entire array[, as here,] or through responses to questions raised by members of a panel, serves a useful function.” Edmonds v. State, 196 Ga. App. 190, 194 (1) (395 SE2d 566) (1990). See also Johnson v. State, 179 Ga. App. 21, 23 (2) (345 SE2d 123) (1986); Mention v. State, 171 Ga. App. 116 (1) (318 SE2d 765) (1984); Beardon v. State, 159 Ga. App. 892, 893 (3) (285 SE2d 606) (1981). The instant preliminary juror orientation session was recorded and no comment made by the trial court therein has been specifically enumerated as erroneously uninformative, inaccurate, or prejudicial. Compare Edmonds v. State, supra at 193 (1). Appellant’s enumeration of error asserts only that the absence of his counsel mandates a reversal. However, the preliminary juror orientation session was not a “stage of the trial” or a “critical stage of the proceedings,” such as would require reversal based solely upon the absence of appellant or his counsel. See Gilreath v. State, 247 Ga. 814, 824 (3) (279 SE2d 650) (1981); Stone v. State, 177 Ga. App. 750, 751 (1) (341 SE2d 280) (1986). See also Commonwealth v. Katz, 10 A2d 49, 52-53 (Pa. Super. 1939); Goldstein v. State, 150 A2d 900, 905 (Md. App. 1959); People v. Lopez, 197 P2d 757, 759 (Cal. 1948). Accordingly, this enumeration of error is without merit.

2. Appellant’s blood-alcohol level was shown to be .06. On cross-examination, the law enforcement officer who had tested appellant’s blood-alcohol level was asked whether this was “a low test compared to those normally given to people who are charged with DUI.” The State’s objection on the ground of irrelevancy was sustained and the officer was not allowed to answer the question. This ruling is enumerated as error.

The issue for jury resolution was whether appellant was “[u]nder the influence of alcohol to the extent that it [was] less safe for [him] to drive. . . .” (Emphasis supplied.) OCGA § 40-6-391 (a) (1). Obviously, the test results of persons other than appellant would shed no light on this issue. Any mere disparity between appellant’s test results and those of others charged with DUI would not be reflective of the differing effect that a given blood-alcohol level might have on the ability of different individuals to drive safely. A blood-alcohol level greater than .06 might not render one individual a less safe driver, whereas a blood-alcohol level below .06 might render another individual a less safe driver. As with any driver whose blood-alcohol level was within the parameters of OCGA § 40-6-392 (b) (2), appellant’s test result raised no presumption that he was thereby rendered a less safe driver and was but one factor to be considered by the jury in making that determination. Since the test results of persons other than appellant would not be probative of any relevant issue in the case, it was not error for the trial court to have sustained the State’s objection to the question. See generally Hunter v. State, 191 Ga. App. 769, 771 (382 SE2d 679) (1989).

Judgments affirmed. Judge Arnold Shulman concurs.

Beasley, J., concurs specially.