Summary of THE STATE v. BLACK, A98A2122 (Court of Appeals of Georgia, Jan. 19, 1999)

Factual and Procedural Background

Defendant was charged by accusation with driving under the influence of alcohol, obstruction, reckless driving, failure to maintain lane, and speeding. At the Cobb State Court D.U.I. proceeding, the trial court granted the defendant's motion in limine to exclude evidence that he refused to take a state-administered breath test. The trial court's exclusion was based on the arresting officer's alleged failure to read verbatim the implied consent notice required by OCGA § 40-5-67.1(b)(2). The State appealed that ruling to the Court of Appeals of Georgia. The opinion is authored by Presiding Judge McMurray.

Legal Issues Presented

Whether the 1998 amendment to OCGA § 40-5-67.1(b), which permits the implied consent notice to be "read in its entirety but need not be read exactly so long as the substance of the notice remains unchanged," applies retroactively to conduct that occurred before the amendment's effective date.
Whether the implied consent warnings given to defendant satisfied the statutory requirements of OCGA § 40-5-67.1 where the arresting officer used the singular word "test" instead of the plural "tests" in the next-to-last sentence of the warning.

Arguments of the Parties

Appellant (The State)

The opinion records only that "The State appeals" the trial court's grant of the motion in limine; no detailed description of the State's specific appellate arguments is provided in the opinion.

Appellee (Defendant)

Defendant contended that the arresting officer's implied consent warnings were deficient because the officer changed the statutory word "tests" to "test" in OCGA § 40-5-67.1(b)(2)'s next-to-last sentence, and that this change altered the meaning of the Code subsection.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
State v. Moncrief, 234 Ga. App. 871, 872 (4), 873 (5) (508 S.E.2d 216)	Retroactive application of the 1998 amendment to OCGA § 40-5-67.1(b) despite offenses occurring before the amendment's effective date.	The court relied on Moncrief to conclude that the 1998 statutory amendment applies retroactively in the present case.
State v. Sneddon, 235 Ga. App. 739 (510 S.E.2d 566)	Authority addressing whether implied consent warnings satisfy OCGA § 40-5-67.1.	The court invoked Sneddon in framing the controlling issue as whether the warnings satisfied the applicable statutory requirement under OCGA § 40-5-67.1.
State v. Hopkins, 232 Ga. App. 705 (503 S.E.2d 590)	Support for finding that, under certain circumstances, a materially similar advisory satisfies OCGA § 40-5-67.1 despite minor variations in wording.	The court cited Hopkins to support its conclusion that the officer's use of "test" (singular) — when only a single type of state-administered test was requested — satisfied the statutory requirements.

Court's Reasoning and Analysis

The court's analysis proceeded in these steps, based solely on the opinion's content:

The General Assembly amended OCGA § 40-5-67.1(b) effective March 27, 1998, to permit the implied consent notice to be "read in its entirety but need not be read exactly so long as the substance of the notice remains unchanged."
Although the charged offenses allegedly occurred on November 2, 1997, the court held that the 1998 amendment applies retroactively in this case, citing State v. Moncrief.
Framed the controlling issue (citing State v. Sneddon) as whether the implied consent warnings given to defendant satisfied the statutory requirement of OCGA § 40-5-67.1 under the now-applicable standard.
The court recited the arresting officer's testimony, including the verbatim warning he gave, which used the singular "test" in the next-to-last sentence. The officer's testimony included the explicit statement that he asked the defendant to submit to a breath test and advised the defendant of the right to additional tests at his own expense after first submitting to the required state test.
The court accepted the officer's explanation that he used the singular "test" because he requested only one type of state-administered test (a breath test) from the defendant.
Relying on the statutory amendment's allowance for non-exact recitations (so long as substance remains unchanged) and on State v. Hopkins, the court concluded the warnings, as given under these circumstances, satisfied OCGA § 40-5-67.1.
Because the warnings were found adequate, the trial court erred in granting the defendant's motion in limine to exclude evidence of his refusal to take the state-administered breath test.

Holding and Implications

Holding: The Court of Appeals reversed the trial court's order granting the defendant's motion in limine; the court held that the arresting officer's implied consent warnings satisfied the statutory requirements of OCGA § 40-5-67.1 under the circumstances. The opinion states: "Judgment reversed."

Implications:

The direct effect is that the trial court's exclusion of evidence that the defendant refused the state-administered breath test was erroneous, and the exclusion should be set aside.
The opinion applies the 1998 amendment to OCGA § 40-5-67.1(b) retroactively as to this case, and the court relied on existing precedents cited in the opinion. The opinion does not announce any broader new legal rule beyond the application described above.

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THE STATE v. BLACK

McMURRAY, Presiding Judge.

Defendant was charged in an accusation with driving under the influence of alcohol, obstruction, reckless driving, failure to maintain lane and speeding. The trial court granted defendant's motion in limine to exclude evidence of his refusal to take a state administered breath test based on the arresting officer's failure to read verbatim the implied consent notice mandated by OCGA § 40-5-67.1 (b) (2). The State appeals. Held:

The General Assembly amended OCGA § 40-5-67.1 (b), effective March 27, 1998, to state that an implied consent notice "shall be read in its entirety but need not be read exactly so long as the substance of the notice remains unchanged." Ga. L. 1998, pp. 210, 212. Although the offenses for which defendant is charged allegedly occurred on November 2, 1997, this amendment applies retroactively in the case sub judice. See State v. Moncrief, 234 Ga. App. 871, 872 (4), 873 (5) ( 508 S.E.2d 216). Accordingly, the controlling issue is whether the implied consent warnings given defendant satisfied the applicable statutory requirement under OCGA § 40-5-67.1 See State v. Sneddon, 235 Ga. App. 739 ( 510 S.E.2d 566). To this extent, defendant complains that the arresting officer's implied consent warnings were deficient because the arresting officer changed the word "tests" to "test" in OCGA § 40-5-67.1 (b) (2)'s next to the last sentence and thereby changed the Code subsection's meaning. We do not agree.

The arresting officer testified that he advised defendant as follows: "Georgia law requires you to submit to state-administered chemical tests of your blood, breath, urine, or other bodily substances for the purpose of determining if you are under the influence of alcohol or drugs. If you refuse this testing, your Georgia driver's license or privilege to drive on the highways of this state will be suspended for a minimum period of one year. And your refusal to submit to the required testing may be offered into evidence against you at trial. If you submit to testing and the results indicate an alcohol concentration of 0.10 grams or more, your Georgia driver's license or privilege to drive on the highways of this state may be suspended for a minimum period of one year. After first submitting to the required state test, you are entitled to additional chemical tests of your blood, breath, urine, or other bodily substances of your own expense and from qualified personnel of your own choosing. Will you submit to the state-administered chemical test of your breath . . . under the Implied Consent law?"

The arresting officer's testimony reveals that he used the word "test" instead of "tests" in the next to the last sentence of his implied consent warnings to defendant because the officer only asked defendant to submit to one type of state administered test — i.e., a breath test. Under such circumstances, we find that the arresting officer's implied consent warnings to defendant satisfied the applicable statutory requirements under OCGA § 40-5-67.1. See State v. Hopkins, 232 Ga. App. 705 ( 503 S.E.2d 590). The trial court therefore erred in granting defendant's motion in limine to exclude evidence of his refusal to take a state administered breath test.

Judgment reversed. Blackburn and Eldridge, JJ., concur.

DECIDED JANUARY 19, 1999 — CERT. APPLIED FOR.

STATE v. BLACK