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SHEFFIELD v. THE STATE

Court of Appeals of Georgia1987-09-09No. 74969
184 Ga. App. 141361 S.E.2d 28

Summary

Holding. The trial court properly admitted evidence of the defendant's refusal to submit to a breath test despite dismissal of the administrative license suspension proceeding, because that civil administrative action made no determination regarding refusal and thus did not control admissibility under the controlling statute. The judgment was affirmed.

A defendant convicted of driving under the influence appealed on several evidentiary grounds. The defendant argued that evidence of his refusal to take a breath test should have been excluded because an administrative hearing regarding license suspension had been dismissed when the arresting officer failed to appear. The defendant contended this dismissal amounted to res judicata and violated constitutional protections against double jeopardy and denial of due process. The court rejected this reasoning, noting that the administrative proceeding was civil in nature and its dismissal—which occurred solely because the officer was absent—made no determination about whether a refusal actually occurred. Accordingly, the dismissal had no bearing on the admissibility of refusal evidence in the criminal trial, which is expressly authorized by statute.

The defendant also challenged the exclusion of the administrative hearing results, arguing they should have been admitted to support his position. The court found no error in excluding them because the dismissal was probative of neither the refusal question nor the ultimate issue of intoxication. Finally, regarding the defendant's prior driving record, the court held that the defendant had opened the door to cross-examination by testifying on direct examination that he had been driving safely for 25 years without wrecks. When he later qualified this statement by admitting to prior traffic stops, the state was entitled to impeach his credibility with evidence of his actual driving history, including prior DUI convictions and speeding violations.

Summary generated by law.co from the public-domain opinion. The opinion text itself is public domain.

Key issues

  • Admissibility of breath test refusal evidence following dismissal of administrative license suspension proceeding
  • Whether administrative proceeding dismissal constitutes res judicata barring refusal evidence in criminal trial
  • Admissibility of prior driving record where defendant first opened door through direct examination testimony

Procedural posture

The defendant appealed from a jury conviction and sentence for driving under the influence, challenging the trial court's evidentiary rulings on four grounds.

Authorities cited

No cited authorities resolved to law.co cases yet.

Opinion

majority opinion

Beasley, Judge.

From a jury conviction and sentence for driving under the influence of alcohol, OCGA § 40-6-391 (a) (2), defendant appeals with respect to matters of evidence. The first two enumerations complain of the admission of evidence that he refused the state-administered breath test. The third complains of the exclusion of evidence of the results of the administrative hearing. The fourth challenges the admission of evidence of defendant’s prior driving record.

1. Defendant moved in limine for the exclusion from trial of evidence that he refused to submit to a state-administered test for alcohol in his blood which is required by OCGA § 40-5-55. He reasoned that it was inadmissible because the hearing he requested pursuant to subdivision (d) of that code section ended in dismissal of the Department of Public Safety’s action to suspend his license for the alleged refusal. This dismissal, he contended, rendered any evidence of his refusal inadmissible because to admit it would deny due process and equal protection, would constitute double jeopardy, would constitute res judicata, and would preclude a fair and impartial trial, all as guaranteed by the United States and Georgia constitutions.

The court found that the Department’s action was dismissed because the arresting officer did not appear for the administrative hearing, concluded that this did not make evidence of refusal inadmissible, denied the motion in limine, and permitted the evidence of refusal at trial. On appeal, defendant concentrates on the argument that the dismissal constituted res judicata on the issue of refusal so the state could not go behind the dismissal and offer the evidence of refusal.

OCGA § 40-6-392 (c) provides that refusal to take the required test is admissible in any criminal trial. See also Wessels v. State, 169 Ga. App. 246 (312 SE2d 361) (1983). There was no determination at the administrative hearing that defendant did or did not refuse the test. The administrative sanction of license suspension was allayed for the reason that the officer who could testify about the matter was absent; this did not establish that defendant did not refuse the test. The dismissal was irrelevant to the question of refusal vel non and to the question of the admissibility of evidence of refusal. See in this connection Wyatt v. State, 179 Ga. App. 327 (1) (346 SE2d 387) (1986), where refusal was deemed admissible despite the fact that the administrative action for license suspension was aborted by the of fleer’s absence from the hearing.

Moreover, “[t]he proceedings to suspend the appellant’s driving privileges in these cases are strictly civil or administrative in nature since no criminal consequences result from a finding adverse to the [licensee].” Cogdill v. Dept. of Public Safety, 135 Ga. App. 339, 340 (217 SE2d 502) (1975). Thus, their outcome does not control the admissibility in the criminal trial of evidence of refusal pursuant to OCGA § 40-6-392 (c).

Since defendant had not “prevailed” on the issue of refusal in the res judicata sense which he urges, the denial of the motion in limine and the admission of refusal evidence did not subject him to unconstitutional prejudice, double jeopardy, or unfairness at trial as he conclusorily argues.

2. On objection, the court refused to allow defendant to give evidence of the results of the administrative action. This was not error because the dismissal of the action on account of the officer’s absence was not probative of the issue of refusal or of the ultimate issue of intoxicated driving. Wyatt v. State, supra at 328.

3. Lastly, defendant claims a violation of OCGA § 24-9-20 (b) by the admission of his prior driving record because he did not first put his character in issue. However, there was no error. Defendant himself introduced the subject by implying in an unresponsive answer on direct examination that he had a clear record for 25 years, thus allowing cross-examination to impeach this statement, and then by partially reneging on the statement by volunteering unresponsively to a state’s question with some but not all of the truth.

Defendant was asked during direct examination whether he was unsafe on the road the night of his arrest. He responded: “No, sir, I been driving for 25 years and I ain’t had no wrecks or nothing and I hadn’t had no wreck or nothing that night. I don’t believe I was driving unsafely.” The state argued that it should be permitted to cross-examine on defendant’s driving record because defendant had given a false impression. The court ruled that it would permit such cross-examination.

In approaching the subject, the state asked defendant: “You testified earlier before you’ve been driving for 25 years and never had any wrecks or nothing?” Defendant responded: “I never had any wrecks. Now, the ‘or nothing,’ I been stopped a few times.” This admission, which conflicted with the earlier statement, prompted the state to challenge its meaning by asking about two prior DUI convictions and several speeding violations, which defendant admitted. A printout of defendant’s driving record was also then admitted.

By bringing the subject up himself, defendant gratuitously opened the door for exploration of his driving history, “and it is of no avail now to plead that he did not intend to open the door so wide.” Grant v. State, 178 Ga. App. 398, 399 (2) (343 SE2d 422) (1986). In addition, at least the first statement offered by defendant entitled the state to impeach it by evidence of his prior driving record. Porter v. State, 254 Ga. 388, 389 (2) (330 SE2d 94) (1985).

Decided September 9, 1987.

H. Burton Crews, Jr., for appellant.

John C. Carbo III, Solicitor, for appellee.

Judgment affirmed.

McMurray, P. J., concurs. Sognier, J., concurs in the judgment only.