Conley v. State

Benham, Judge.

A jury found appellant guilty of driving under the influence of alcohol (OCGA § 40-6-391) and acquitted him of failure to dim headlights (OCGA § 40-8-31). Appellant seeks reversal of his judgment of conviction, claiming that the trial court erred in denying his motion to suppress evidence and in denying his motion in limine. We affirm the judgment.

Trial testimony revealed that two police officers, traveling north on Highway 85 in Riverdale, had stopped at a red light at the intersection of Highway 138 when they observed appellant’s vehicle with its bright lights on approximately one and a half car lengths away, traveling south on Highway 85. The officer driving the police vehicle flashed his bright lights a few times as a signal for appellant to dim his lights. Appellant failed to do so and drove his vehicle into the parking lot of a nearby restaurant, where the officers followed him. Both appellant and the officers exited their vehicles, affording the officers an opportunity to observe and talk to the appellant for approximately ten minutes. They concluded that appellant was intoxicated and informed him of their belief. Appellant stated he was an insurance agent who “couldn’t afford a D.U.I. on his record” and “asked for a break.” The officers then advised appellant he was going to be placed under arrest and taken to the Riverdale Police Department for a breath test. They placed him in the police vehicle and read him the implied consent warnings.

1. Appellant complains that the evidence obtained as a result of the stop should have been suppressed because the officers had no probable cause to stop him since their vehicle was not an oncoming vehicle within the meaning of OCGA § 40-8-31. We disagree. OCGA § 40-8-31 (1) states that “[w]henever a driver of a vehicle approaches an oncoming vehicle within 500 feet, such driver shall use a distribution of light, or composite beam, so aimed that the glaring rays are not projected into the eyes of the oncoming driver.” We will not hold that a motor vehicle that has stopped for a traffic light is no longer an “oncoming vehicle.” The trial testimony makes it clear that the two vehicles were in the process of coming toward each other. There was probable cause for the officers to act as they did, even though appellant was not convicted of committing the traffic offense. See McElroy v. State, 173 Ga. App. 685 (1) (327 SE2d 805) (1985).

2. Appellant argues that the statements he made to the arresting officers should not have been allowed at trial since they were not disclosed in response to his notice to produce. Appellant was not in police custody but was only detained pursuant to a traffic stop at the time he made the voluntary statements. Therefore, the statements need not have been disclosed pursuant to OCGA § 17-7-210, and the trial court committed no error in allowing their admission. Hudgins v. State, 176 Ga. App. 719 (1) (337 SE2d 378) (1985); Wilson v. State, 173 Ga. App. 805 (1) (328 SE2d 418) (1985).

Judgment affirmed.

Deen, P. J., McMurray, P. J., Sognier and Pope, JJ., concur. Banke, C. J., Birdsong, P. J., Carley and Beasley, JJ., dissent.