Avery v. State

The DUI defendant's statement that he wanted the officer to give him more tests could not reasonably be construed as a request for an independent chemical test of his own choosing.

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Following a traffic stop, appellant Jesse Trotter Avery was charged with per se DUI pursuant to OCGA § 40-6-391 a 5, failure to maintain lane, and driving with a suspended license. Avery filed a motion in limine and to suppress arguing, inter alia, that the results of the Intoxilyzer 5000 should be excluded because the State did not comply with his request for additional testing. Avery also filed a special demurrer to the driving on a suspended license charge, and the prosecutor agreed that charge should be dismissed. After his motion to suppress and motion in limine were denied, he was tried before the probate court sitting without a jury and convicted of failure to maintain lane and driving under the influence. He appealed to the superior court, and his conviction was affirmed. He filed a timely notice of appeal to this Court, contending that his motion to suppress should have been granted, that the results of the field sobriety tests should have likewise been excluded because the officer performing the tests failed to give him Miranda warnings prior to the administration of those tests, and his right of cross-examination was unduly restricted. 1. Avery first argues that the results of the Intoxilyzer 5000 should have been excluded because his request for an independent chemical test was not accommodated. Ladow v. State , 256 Ga. App. 726, 728-729 569 SE2d 572 2002.1

Deputy Michael Cloud of the Dade County Sheriff’s Department testified at both the motion to suppress hearing and at trial: According to his testimony at the motion to suppress hearing, he stopped Avery after he observed him failing to maintain his lane. Deputy Cloud testified that he smelled a strong odor of alcoholic beverage coming from the vehicle, so he asked Avery if he had any alcoholic beverages to drink that evening and Avery told him he had not.

Avery v. State

The DUI defendant's statement that he wanted the officer to give him more tests could not reasonably be construed as a request for an independent chemical test of his own choosing.

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