State v. McCracken

Deen, Presiding Judge.

Doyle McCracken was charged with driving a motor vehicle while under the influence of alcohol on July 21, 1983. He filed a motion to suppress based upon the arresting officer’s alleged noncompliance with Department of Public Safety Rule 570-9-.06 (1) which was in force at the time of his arrest and has since been stricken from the department’s rules. The rule stated: “Every officer stopping a motorist pursuant to Georgia Code 68B-306 and performing an alcohol screening test shall deliver the results of said test and his accompanying report to his supervising superior at the post, precinct, station or office to which he is assigned at the close of his hours of duty.”

The arresting officer testified that he administered an alco-sensor test to McCracken on the date in question and that it was the Georgia State Patrol’s policy as well as his individual practice to turn in all citations, incident reports, etc. to the station at the end of each day. Although he could not remember if he had submitted the incident report in question, he could not recall failing to submit such a report. He further stated that he was unable to locate the incident report in this case, but that the state patrol files are destroyed after a certain period of time and that this was his first court appearance on this case. The defendant claimed that the officer told him he had passed both tests, but admitted the decision to make a D.U.I. arrest was within the officer’s discretion. The trial court granted the defendant’s motion to suppress on the grounds of noncompliance with rule 570-9-.06 (1) and that the failure of the officer to deliver the results of this test and his report harmed the defendant. The state appeals. Held:

The court does not specify the nature of the harm done to the defendant and we can find none. Other portions of the rule in question have been held to be “a mere policy statement which lacks the force and effect of law” from which there can be no resulting harm to the defendant for failure to adhere to its requirements. Rielli v. State, 174 Ga. App. 220, 222 (330 SE2d 104) (1985). See also Thompson v. State, 175 Ga. App. 645, 647 (334 SE2d 312) (1985). We believe this same reasoning applies to 570-9-.06 (1).

Judgment reversed.

Benham and Beasley, JJ., concur specially.