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TAYLOR v. THE STATE.
S91A0732.
WELTNER, Justice.
D.U.I.; constitutional question. Ware State Court. Before Judge Peavy.
James Taylor was convicted of driving under the influence of alcohol and driving with an unlawful blood alcohol level.
1. The hospital refused to administer to Taylor a second chemical test, authorized by OCGA 40-6-392 (a) (3), on the ground that he did not have on his person sufficient currency with which to pay the $38 cost of the test. He enumerates as error the trial court's denial of his motion in limine and his motion to quash the results of a breath alcohol test. He contends that the state's implied consent law is unconstitutional insofar as it denies to an indigent person, who has been charged with driving under the influence, a second chemical test at public expense.
2. (a) In Thompson v. State, 175 Ga. App. 645, 647 (2 (d)) (334 SE2d 312) (1985), cert. denied, the Court of Appeals held:
The law does not require the government to pay for two tests. The second is the driver's option, so that he may challenge the results of the officers-requested test. The cost of the optional test, to be administered by a qualified person of the driver's own choosing, must be borne by the driver, at least where he is able to pay. . . . The facts show that defendant was afforded the opportunity to obtain an independent test of his blood, and that is all that is required. [Cit.]
"Where a defendant makes no arrangements to secure an independent test, the mere fact that it was not made 'fails to disclose any reason to suppress the evidence merely because the defendant was unable to obtain a test of his own choosing.' " [Cits.]
(b) Because Taylor failed to prove indigency, he lacks the standing to attack the constitutionality of the implied consent statutes. The trial court did not abuse its discretion in denying the motion in limine and to quash.
Patrick H. Head, Solicitor, Cobb County, Ralph T. Bowden, Solicitor, DeKalb County, Gerald N. Blaney, Solicitor, Gwinnett County, David M. Fuller, Assistant Solicitor, amici curiae.
Douglas Gibson, Solicitor, for appellee.
E. Kontz Bennett, Jr., for appellant.
DECIDED JULY 3, 1991.
Thursday May 21 10:36 EDT


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