Johnson v. State

Johnson, Judge.

Anthony Dean Johnson was convicted of driving under the influence of alcohol and no proof of insurance. He appeals from his conviction.

1. Johnson contends that the trial court erred in admitting the results of his intoximeter test. He argues that despite his demand for scientific reports pursuant to OCGA § 17-7-211, he was provided with a copy of the intoximeter results only two days prior to trial. “When a written scientific report is furnished late, the appropriate remedy is for the trial court to grant a continuance or recess upon timely request by the defendant.” Shannon v. State, 205 Ga. App. 831, 832 (1) (424 SE2d 51) (1992). When the case was called for trial, Johnson moved for a continuance, indicating that one day would be sufficient. The trial court denied the request for a one-day continuance, but granted a one-hour continuance. “The grant or denial of a motion for continuance is within the sound discretion of the trial court, OCGA § 17-8-22, and will not be disturbed absent a showing of abuse of that discretion. ... As appellant has not shown how additional time would have benefitted him or how the lack of time harmed him, we find no abuse of discretion in the trial court’s denial of the motion for continuance.” (Citations and punctuation omitted.) Robinson v. State, 202 Ga. App. 576, 577 (2) (a) (415 SE2d 21) (1992).¹

Additionally, the officer who administered the test informed Johnson of the results immediately after it was administered, although it is not clear from the record if he provided Johnson with a copy of the report. The accusation, served on Johnson four months prior to trial, stated that he was charged with driving with a blood-alcohol level of .13, the reading of the intoximeter. In Ratliff v. State, 207 Ga. App. 112 (427 SE2d 85) (1993), this court held that the notation of the intoximeter test results on the traffic citation was sufficient to give defendant notice of the result, even if he did not receive a copy of the intoximeter test results itself. Because Johnson had the information contained on the intoximeter report, the trial court did not err in admitting the results of the test.

2. The arresting officer testified that the insurance card Johnson presented to him was expired and had been altered. He also explained the absence of the card at trial, stating that he returned the card to Johnson at the jail. In his second enumeration of error, Johnson asserts the trial court erred in allowing testimony concerning the card as it violated the best evidence rule. OCGA § 24-5-4 (a) provides: “The best evidence which exists of a writing sought to be proved shall be produced, unless its absence shall be satisfactorily accounted for.” Whether to accept the explanation of the absence of the document is a determination that lies within the discretion of the trial court. Croxton v. Leggett Motor Rebuilding, 168 Ga. App. 258, 259 (308 SE2d 640) (1983). Particularly in light of Johnson’s own admission at trial that he did not have an insurance card because he paid for insurance in installments, we do not find that the trial court abused its discretion in allowing the officer’s testimony without producing the card itself.

Judgment affirmed.

Pope, C. J., McMurray, P. J., Birdsong, P. J., Cooper, Andrews and Smith, JJ., concur. Beasley, P. J., concurs specially. Blackburn, J., concurs in part and dissents in part.

1 We note that a jury was impaneled and the trial began. During the lunch recess one of the jurors indicated that she would be unable to render a verdict in the case. A mistrial was declared and the case was continued until the next morning. Even though Johnson’s request for a day’s continuance was denied by the trial judge it was granted by circumstance.