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Swain v. State

The trial court was not bound by the ALJ's decision during defendant's license suspension hearing that she did not refuse to submit to chemical testing.

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On the night of January 20, 2000, Carol Swain’s car crossed the center line of traffic and collided head-on with another vehicle. She was charged with DUI to the extent she was a less safe driver, and a jury later found her guilty.1 On appeal, Swain asserts that the trial court erred in admitting evidence that she refused to consent to a blood test for the presence of alcohol because an administrative law judge ALJ already had ruled at her driver’s license suspension hearing that she did not refuse testing. She also argues that the trial court should have charged the jury that the smell of alcohol, alone, is insufficient to prove intoxication. Because the ALJ’s finding had no preclusive effect in her criminal trial, and because Swain’s requested jury charge did not fit the evidence, we affirm.

1. A motorist in Georgia who is suspected of driving under the influence of alcohol and who is asked to submit to a blood test for the presence of alcohol has the right to refuse the test, and the arresting officer must inform her of that right.2 If she refuses to submit to the test, the Department of Public Safety may suspend her driver’s license for a minimum of one year.3 Moreover, evidence of her refusal may be admitted at a subsequent DUI prosecution, but only if she was properly informed of her right to refuse.4

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