Butts v. Department of Public Safety

Bell, Chief Judge.

Appellant’s driver’s license was suspended for his refusal to take a blood or breath test under the Implied Consent Law. Ga. L. 1968, pp. 448, 452 (Code Ann. § 68-1625.1). At a hearing it was shown that after appellant’s arrest in Columbus for driving while under the influence of intoxicants he was given an explanation of the Implied Consent Law. Appellant declined the breath test but requested a blood test. He was taken to a local hospital. At the hospital, appellant refused to "sign the forms for the blood test” and requested the presence of his doctor, who lives in Lumpkin, to withdraw the blood. Appellant was advised by the "medical staff” that he would have to use their facilities and their doctor. The appellant refused to consent to allow anyone present to draw the blood sample. Appellant testified that after learning that he could not have his own physician present to draw the blood or to call another local doctor that he didn’t want "just some old practicing intern” to take his blood because he thought he might get hepatitis or some kind of disease; and that since he was advised that there was no one locally present who could analyze the blood there was no point in taking the blood test. There is no evidence in the record revealing the content of the hospital form that appellant refused to sign. On appeal to the superior court the order of suspension was affirmed. Held:

1. At the Department of Public Safety hearing, appellant did not place his refusal to submit on anything contained in the hospital form, the content of which is unknown. No objection was made or issue raised at the agency hearing relative to the form. There is absolutely no evidence as to what the form contained. The argument was raised for the first time on appeal. Code Ann. § 3A-120 (c) specifically prohibits consideration of an objection by the courts on review unless the issue was urged before the agency.

Argued November 6, 1972 — Decided March 1, 1973 Rehearing denied March 14, 1973 Frank K. Martin, for appellant. ArthurK. Bolton, Attorney General, HaroldN. Hill, Jr., Executive Assistant Attorney General, Courtney Wilder Stanton, Daniel I. MacIntyre, Assistant Attorneys General, for appellee.

2. The record shows that the refusal was based solely on the lack of anyone locally available to analyze the blood specimen. There is no requirement in the Implied Consent Law that there must be someone in the immediate local area licensed under the statute to give an analysis of blood. Nor does the party concerned have any right under the law to have his own physician draw the blood. His conduct shows nothing more than an unwillingness to submit to the blood test because of the lack of a local licensed analyst. The evidence authorizes the conclusion that appellant unjustifiably refused to consent and the judgment is affirmed.

Judgment affirmed.

Hall, P. J., Eberhardt, P. J., Pannell, Quillian, Clark and Stolz, JJ., concur. Deen and Evans, JJ., dissent.