author: Phipps, Presiding Judge.

text:
    A12A2445.
    THE STATE v. BARNARD.
    (740 SE2d 837)
   Phipps, Presiding Judge.

The state appeals from a trial court order granting Lachelle Barnard’s motion in limine to exclude the results of an Intoxilyzer 5000 breath test obtained at the time of her arrest for making an improper u-turn and driving under the influence. The state contends that the trial court erred in excluding the Intoxilyzer test results on the basis of its finding that the arresting officer had informed Barnard that her out-of-state license would be suspended if she did not submit to the state-administered breath test, and its finding that the officer did not read the correct implied consent notice to Barnard. Because we find no substantial basis for the trial court’s ruling, we reverse.

Where the evidence at a hearing on a motion in limine is uncontroverted, and no issue exists regarding the credibility of witnesses, we review the trial court’s ruling to ensure that there was a substantial basis for it. The trial court’s application of the law to the undisputed facts is subject to de novo review.

At the hearing on Barnard’s motion in limine, the arresting officer testified that on November 11, 2010, he observed Barnard’s vehicle make a u-turn at an intersection where a posted sign prohibited such a turn. The officer conducted a traffic stop. He smelled a strong odor of alcohol coming from the vehicle. Barnard told the officer that she had drunk an alcoholic beverage at the restaurant she had just left. The officer observed that Barnard’s speech was slurred and her eyes were bloodshot. He asked Barnard to exit her vehicle, and Barnard did so. The officer observed that Barnard was unsteady on her feet, and he smelled a strong odor of alcohol coming from her breath. When he asked for her driver’s license, Barnard produced a North Carolina driver’s license.

Barnard performed a field sobriety test, and the officer noted two clues of impairment. Barnard blew into an alco-sensor device, which gave a positive result. The officer arrested Barnard for driving under the influence. Concerning what transpired next, the following colloquy occurred on direct examination:

Q. Did you read her her Georgia implied consent warning?
A. I did.
Q. And which section did you read?
A. Georgia Implied Consent Notice For Suspects Age 21 And Over.
Q. How were you able to determine her age?
A. From her license.
Q. Officer, I just handed you what we’ve marked State’s 1 for the Court. Would you identify that?
A. Yes. It’s a beat up copy of my Intox card I keep in my shirt.
Q. Is it an accurate copy of your Georgia implied consent card?
A. It is.
Q. And is that the warning that was in effect at the time of this arrest?
A. It is.
Q. Did you read it verbatim to the Defendant?
A. I did.

A copy of the officer’s implied consent card was admitted in evidence. The card pertinently stated:

IMPLIED CONSENT NOTICE/SUSPECTS AGE 21 OR OVER
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. 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 0.08 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 tests, you are entitled to additional chemical tests of your blood, breath, urine, or other bodily substances at your own expense and from qualified personnel of your own choosing. Will you submit to the state administered chemical tests of your (<designate which test) under the Implied Consent Law?

The officer testified that he had asked Barnard to submit to a breath test, and that Barnard consented and submitted to the test.

On cross-examination, the officer testified, “I read her implied consent outside the car.... As soon as I put her in handcuffs, told her she was under arrest and I read her implied consent.” Concerning what the officer told Barnard about her license being suspended, the following colloquy occurred:

Q. Do you recall telling her that her driver’s license would be suspended if she refused the test?
A. No. I read her implied consent. It says it in implied consent.
Q. So you don’t recall any conversation after that?
A. No. It says: Your driver’s license will be suspended for a minimum period of one year if you refuse this testing.
Q. Okay. So you told her her driver’s license would be suspended for a period of one year?
A. It’s in the implied consent, when I read it to her. Yes, sir.

The trial court excluded the results of the breath test, finding, pertinently:

Officer [name] informed [Barnard] that her license would be suspended if she did not submit to the state administered breath test. This Court finds that Officer [name] read the implied consent warning card for drivers licensed by the State of Georgia. However, Defendant Barnard had a North Carolina driver’s license and as a result the officer did not read the correct warnings to [Barnard]. Therefore, [Barnard’s]
Motion to Suppress the intoxilyzer results is hereby GRANTED.

Barnard submitted to the testing, which showed that she had a blood alcohol concentration level of 0.133. Barnard did not testify at the hearing.

1. The state contends that the trial court erred in excluding the Intoxilyzer test results based on the court’s finding that the arresting officer had informed Barnard that her license would be suspended if she did not submit to the state-administered breath test. We agree with the state.

The determinative issue with the implied consent notice is whether the notice given was substantively accurate so as to permit the driver to make an informed decision about whether to consent to testing. Even when the officer properly gives the implied consent notice, if the officer gives additional, deceptively misleading information that impairs a defendant’s ability to make an informed decision about whether to submit to testing, the defendant’s test results or evidence of his refusal to submit to testing must be suppressed. The suppression of evidence, however, is an extreme sanction and one not favored in the law.

Georgia’s Department of Driver Services (“DDS”) is primarily responsible for, among other things, the “[a]dministration of the laws and regulations relating to drivers’ licenses,” as provided for in OCGA § 40-5-1 et seq. As it concerns a nonresident motor vehicle driver, OCGA § 40-5-51 (a) pertinently provides: “The privilege of driving a motor vehicle on the highways of this state given to a nonresident under this chapter shall be subject to suspension or revocation by [DDS] only when suspension or revocation is required by law for the violation.” Consequently, DDS has no authority to suspend or revoke the driver’s license of a nonresident motorist. And while Barnard cites in her appellate brief several cases in which this court held that exclusion of test results was required when the holder of an out-of-state driver’s license was told by a law enforcement officer that his/her license would be suspended for refusing to submit to authorized testing designated by the officer, this is not such a case.

When considered in context, the officer’s testimony provided no evidence from which the trial court could have concluded that the officer had told Barnard that her North Carolina driver’s license would be suspended if she did not submit to the breath test. The officer testified that he read verbatim to Barnard the implied consent notice for suspects 21 years of age or over, and a copy of the officer’s implied consent card from which he had read was admitted in evidence. That notice pertinently provided that a suspect’s Georgia driver’s license would be suspended if she refused to submit to testing.

The officer testified that he did not recall having any conversations with Barnard after he arrested her, other than reading his implied consent card to her. And there was no contradictory evidence presented by Barnard, who did not testify at the hearing. We have held that an officer showed compliance with the implied consent notice requirements where the officer testified that he had read verbatim to a suspect his implied consent card which was admitted in evidence, though the officer summarized for the jury the language of the notice. Accordingly, we find that under the circumstances of this case, there was no substantial basis for the trial court’s exclusion of the results of the breath test.

2. The state contends that the trial court erred in excluding the results of the Intoxilyzer (breath) test on the basis of the court’s finding that the officer did not read the correct notice to Barnard when Barnard presented a North Carolina driver’s license. We agree with the state.

Decided March 28, 2013

Rosanna M. Szabo, Solicitor-General, Gary S. Vey, Assistant Solicitor-General, for appellant.

James K. Sullivan, for appellee.

OCGA § 40-5-67.1 (b) pertinently provides that an arresting officer shall select and read to a person arrested for violation of OCGA § 40-6-391, one of three implied consent notices. The first notice is to be read to suspects under the age of 21; the second notice is to be read to suspects age 21 or over; and the third notice is to be read to suspects driving commercial motor vehicles. Barnard does not assert that she was under the age of 21, or that she occupied a commercial motor vehicle. Thus, there was no appropriate implied consent notice that the officer could have read to Barnard, other than the notice that he had read to her, for suspects age 21 or over. We note that that implied consent notice appropriately notified Barnard that her privilege to drive on the highways of this state would be suspended if she refused the testing.

Based on the foregoing, we reverse the trial court’s order granting the motion to exclude the breath test results.

Judgment reversed.

Ellington, C. J., and Dillard, J., concur.

       OCGA § 40-6-121 (4).

       OCGA § 40-6-391 (a) (1).

        State v. Chun, 265 Ga. App. 530, 531 (594 SE2d 732) (2004) (citation and punctuation omitted).

       See OCGA § 40-5-67.1 (b) (2) (implied consent notice for suspects age 21 or over).

        McHugh v. State, 285 Ga. App. 131, 133 (645 SE2d 619) (2007) (citation omitted).

       See OCGA §§ 40-16-2 (a) (1); 40-5-1 (7).

       (Emphasis supplied.)

       See McHugh, supra; Deckard v. State, 210 Ga. App. 421, 422 (436 SE2d 536) (1993). In 1993, when Deckard was decided, OCGA § 40-5-1 (7) defined “Department” as used in Chapter 5 of Title 40, as the Department of Public Safety; OCGA § 40-5-51 (a) provided: “The privilege of driving a motor vehicle on the highways of this state given to a nonresident under this chapter shall be subject to suspension or revocation by the department in like manner and for like cause as a driver’s license issued under this chapter may be suspended or revoked.”

        Kitchens v. State, 258 Ga. App. 411, 412-415 (1) (574 SE2d 451) (2002); State v. Peirce, 257 Ga. App. 623, 625-627 (1) (571 SE2d 826) (2002); Deckard, supra at 422-423.

       See OCGA § 40-5-67.1 (b) (2); McHugh, supra at 134.

       See Kitchens, supra at 413, 415 (1); Peirce, supra at 626 (1); State v. Terry, 236 Ga. App. 248,250 (511 SE2d 608) (1999) (affirming exclusion of evidence of defendant’s refusal to submit to a blood alcohol test following arrest for driving under the influence of alcohol; although police officer read defendant the implied consent notice, officer subsequently attempted to respond to questions about defendant’s rights and gave defendant extraneous and misleading information); cf. McHugh, supra at 131-132, 134 (prior to reading implied consent notice, police officer stated to driver with out-of-state license that the notice dealt with the driver’s license and privilege to drive in Georgia; held, officer’s warning was substantively accurate so as to permit driver to make an informed decision about whether to consent to the state-administered breath test); Chun, supra at 531-533 (reversing exclusion of evidence that defendant refused to submit to state-administered chemical testing, where, among other things, police officer had read implied consent notice and accurately answered subsequent questions from suspect about consequences of refusal to submit to testing).

       See Fletcher v. State, 307 Ga. App. 131, 133 (4) (704 SE2d 222) (2010).

       See id.; Chun, supra at 533.

       See OCGA § 40-6-391 (prohibiting driving under the influence of alcohol, drugs, or other intoxicating substances; and setting forth penalties).

       See OCGA § 40-5-67.1 (b) (1), (2), (3).

       See OCGA §§ 40-5-51 (a); 40-5-67.1 (b) (2).


source: Caselaw Access Project

author: BARNES, Presiding Judge.

license: Public Domain

text:
    A12A2446.
    WILLIAMSON v. THE STATE.
    (740 SE2d 841)
   BARNES, Presiding Judge.

John Williamson appeals from the order of the trial court denying as untimely his motion for discharge and acquittal on statutory speedy trial grounds. Upon our review, we affirm.

As an appellate court, we review the trial court’s denial of a motion to dismiss an indictment on speedy trial grounds for abuse of discretion and defer to the trial court’s findings of fact and its weighing of disputed facts. Thus, in the absence of clear and convincing evidence to the contrary, we will not disturb the trial court’s factual finding that no jury qualified to try defendant was impaneled during a particular term of court.

(Citations, punctuation and footnotes omitted.) Jones v. State, 305 Ga. App. 528, 529 (699 SE2d 754) (2010).

The record shows that Williamson was charged by accusation filed on July 27, 2011, with failure to maintain lane and two counts of DUI. On November 2, 2011, Williamson filed a statutory demand for speedy trial pursuant to OCGA § 17-7-170. On January 25, 2012, Williamson filed a motion for discharge and acquittal on the ground that the State failed to try him during the term in which his demand was made or the next succeeding term. After a hearing on the motion, the trial court ruled that Williamson’s demand for speedy trial was untimely, and denied the motion.

Williamson contends that the trial court erred in denying his motion for discharge and acquittal and that his demand was timely filed. He maintains that the trial court erred in finding that there was an insufficient number of impaneled jurors available during the November term to conduct his trial.

Pursuant to OCGA § 17-7-170 (a):

Any defendant against whom a true bill of indictment or an accusation is filed with the clerk for an offense not affecting the defendant’s life may enter a demand for speedy trial at the court term at which the indictment or accusation is filed or at the next succeeding regular court term thereafter; or, by special permission of the court, the defendant may at any subsequent court term thereafter demand a speedy trial. . . .

Once a defendant files a demand, OCGA § 17-7-170 (b) directs:

If the defendant is not tried when the demand for speedy trial is made or at the next succeeding regular court term thereafter, provided that at both court terms there were juries impaneled and qualified to try the defendant, the defendant shall be absolutely discharged and acquitted of the offense charged in the indictment or accusation. . . .

However, if the defendant fails to file the speedy trial demand within the time allotted by OCGA § 17- 7-170 (a), and if the trial court does not grant special permission for an untimely filing, the court is authorized to deny the defendant’s motion for discharge and acquittal brought pursuant to OCGA § 17-7-170 (b). See Nesmith v. State, 267 Ga. App. 530, 531-532 (600 SE2d 644) (2004).

The State Court of Fulton County has six terms of court that commence on the first Monday in January, March, May, July, September, and November. OCGA §§ 15-6-3 (3), 15-7-40. Here, Williamson’s accusation was filed on July 27, 2011, placing it in the July term that began on the first Monday in July 2011 and continued until the first Monday in September 2011. Thus, Williamson was required to file his statutory speedy trial demand in either the July term or the next succeeding term. OCGA § 17-7-170 (a). The next succeeding term was the September term, which began on the first Monday in September 2011 and continued until the first Monday in November 2011. Williamson filed his speedy trial demand on November 2, 2011, two days before the end of the September term, the next succeeding term after his accusation was filed.

The trial court found that the motion was filed outside the statutory time period and thus untimely because there was no impaneled jury available to try Williamson during the September term. The trial court found:

[Williamson] filed his Demandfor Speedy Trial at 11:16 a.m., two and one-half days before the end of the September term. [The trial court] had a Civil Non Jury calendar scheduled on November 2, 2011. Although [Williamson] contends that 23 Jurors were available until 1:00 p.m., assuming that the Court received the courtesy copy at around the same time frame, the Court and prosecutor would have had less than two hours to review the Demand and request jurors for a jury trial on November 2 before they were dismissed. That is not a reasonable time frame. No jurors were called for Friday, November 4, 2011, therefore the only remaining date was Thursday, November 3. The evidence showed that five jurors were available on that date, an insufficient number for a jury trial.

“Absent clear and convincing evidence to the contrary, we will not disturb the trial court’s finding that no jury qualified to try appellant was impaneled during the term in which the demand was filed.” Johnson v. State, 264 Ga. App. 195, 196 (590 SE2d 145) (2003).

Here, although the trial court found that there was no jury impaneled at the time Williamson filed his demand, it erred in concluding that the demand was untimely. OCGA § 17-7-170 (a)

does not require that jurors be impaneled at the time the demand is entered in order for the demand to be timely; it simply requires that the demand be entered either at the term of court at which the accusation was filed or at the next succeeding regular term thereafter.

(Citation and punctuation omitted.) Nesmith, 267 Ga. App. at 531. See Mize v. State, 262 Ga. 489, 490 (1) (422 SE2d 180) (1992) (“That no jurors were impaneled at the time appellant’s demand was entered was not relevant to the timeliness of [appellant’s] demand.”). Williamson filed his demand within the two terms stipulated by OCGA § 17- 7-170 (a) — in the September term, which was the next succeeding term after the term in which his accusation was filed — and, thus, it was timely filed.

However,

[w]hether jurors are impaneled during a term of court is relevant... to whether that term will be counted as one of the two regular terms of court, after the term when the demand for trial is entered, during which subsection (b) of OCGA § [17-7-170] requires the state to give the defendant a trial or an absolute discharge and acquittal after an appropriate demand for such has been filed.

Mize, 262 Ga. at 490 (1), n. 3. Thus, the time within which the State must try Williamson is affected by the availability of jurors. Nesmith, 267 Ga. App. at 531.

In computing the time allowed by the two-term requirement of OCGA § 17-7-170 (b), terms or remainders of terms during which no jury is impaneled and qualified to try the defendant are not counted.... [I]n this case, the September [2011] term of court, during the final week of which [Williamson] filed his demand, would count for purposes of OCGA § 17-7-170 (b) only if jurors were impaneled and qualified at the time of his demand, or thereafter in the term.

(Citations and punctuation omitted.) Jones, 305 Ga. App. at 530.

At the hearing on Williamson’s motion, the evidence demonstrated that the clerk had mailed summons to 475 potential jurors directing them to be prepared to report for duty on Wednesday, November 2, 2011, the day that Williamson filed his speedy trial demand. Calculating the number of jurors that would be needed on November 2, 2011, based on all of the trial courts’ requests, on November 1, 2011, the clerk instructed 375 jurors to report for duty the next day, but only 106 actually showed up. Of those who reported, 62 were sent to courtrooms, leaving 44 extra jurors available that day. The clerk did not know when they were released, but agreed that “at least 18 jurors were available until 1:00 when they were released.”

On Thursday, November 3, 2011, of the 375 jurors originally summoned, 175 had been instructed to report, but only 37 actually reported. The clerk testified that she had judicial requests for eighteen jurors in one courtroom and fourteen in another, leaving only five potential jurors available for another trial. While the evidence demonstrated that the judge who requested the 18 jurors ultimately released them at 11:10 that day, the clerk testified that when the jurors were dismissed from the jury room or courtroom, their jury duties were concluded. The clerk called no jurors to come to court on Friday, as was the norm.

Williamson contends that the trial court erred in finding that there were only five potential jurors available on Thursday, November 3, instead of twenty-three. He argues that the evidence shows that one of the judges excused the eighteen jurors she requested; thus, he maintains, there were twenty-three potential jurors available if his case had been called to trial on Thursday. He further contends that had the clerk been notified before 4:30 on Wednesday that more jurors were needed, she could have called in another group of potential jurors for Thursday.

To reiterate, we defer to the trial court’s findings of fact and its weighing of disputed facts, and will not disturb the trial court’s factual finding that there was no impaneled jury qualified to try Williamson during a particular term of court in the absence of clear and convincing evidence to the contrary. See Jones, 305 Ga. App. at 529.

In Fulton County jurors are summoned for one day or one trial, [and] even if jurors were in the building on [November 3, 2011] sitting as jurors on other trials, they would not be a “jury panel” that would trigger the two term provisions of OCGA § 17-7-170. A “jury panel” is defined as the group of prospective jurors who are summoned to appear on a stated day and from which a grand jury or petit jury is chosen. The clerk impanels the jury but does not select or choose it; that act of winnowing is up to the parties. Any jurors in the courthouse ... would have been actively sitting as jurors on the trial of another case and would not be available to the jury clerk for placement on a jury panel. At the conclusion of the ongoing trial, they would not have become available to the jury clerk for placement on another jury panel, because their term of service would have been concluded, and they would be excused by the trial judge presiding over the trial for which they served on.

(Citations and punctuation omitted.) Macinnis v. State, 235 Ga. App. 732, 734 (510 SE2d 557) (1998).

While Williamson might have shown that potential jurors were in the courthouse on Thursday, November 3, he did not show by clear and convincing evidence that the trial court erred in finding that only five jurors were not already committed to other courtrooms that day. Moreover, the clerk testified that she ordinarily received requests for jurors at least the day before they were needed. Williamson filed his speedy trial demand on Wednesday, November 2, at 11:16 a.m. The trial court would have had to request jurors from the clerk early enough to allow her to determine by 4:30 p.m. how many jurors to instruct to report for duty the next day. The jury summons instructed potential jurors to call after 5:00 p.m. the evening before their reporting date and listen to a message that would tell them when they needed to come to court or not. That the demand was filed that day did not ensure that the trial court would or should be immediately notified of the filing, or that the court would have immediately communicated the need for jurors to the clerk that same day.

Likewise, in considering the practical realities of the trial process, the State must be given “a reasonable time frame in which to prepare and try its case against the accused.... The statute ... does not operate to force the State to impanel a jury for one defendant who makes a late demand.” (Citation and punctuation omitted.) Fletcher v. State, 213 Ga. App. 401, 403 (1) (445 SE2d 279) (1994).

Thus, as there was no clear and convincing evidence demonstrating that the trial court erred in concluding that no jury qualified to try Williamson was impaneled during the remainder of the September term in which his demand was filed, the September term did not count for purposes of triggering the two-term provisions of OCGA § 17-7-170 (b). As such, Williamson’s January 25, 2012 motion for discharge and acquittal was premature because the November 2011 term must be treated as the “next succeeding term” for purposes of OCGA § 17-7-170 (b). See Jones, 305 Ga. App. at 532; West v. State, 193 Ga. App. 117, 117-118 (387 SE2d 44) (1989) (provisions of OCGA § 17-7-170 not triggered until the following term because no jury was impaneled to try appellant during that portion of the term that followed his demand). Accordingly, the first of the two terms in which Williamson could be tried was the November 2011 term, and thus the State had that term and the next succeeding term, January 2012, in which to try Williamson.

Decided March 28, 2013

Robert W. Chestney, for appellant.

Carmen D. Smith, Solicitor-General, R. Leon Benham, Assistant Solicitor-General, for appellee.

Accordingly, the trial court did not err in denying Williamson’s motion for discharge and acquittal.

Judgment affirmed.

McFadden and McMillian, JJ., concur.

       The Supreme Court of Georgia has recently ruled that constitutional speedy trial claims are not directly appealable and that a defendant must follow the interlocutory appeal procedures of OCGA § 5-6-34 (b). Sosniak v. State, 292 Ga. 35, 36-40 (2) (734 SE2d 362) (2012). Williamson’s appeal, however, is based on a statutory speedy trial demand under OCGA § 17-7-170. Unlike Sixth Amendment speedy trial denials, “the denial of a motion to dismiss based upon OCGA § 17-7-170 is directly appealable under OCGA § 5-6-34 (a).” Hubbard v. State, 254 Ga. 694, 695 (333 SE2d 827) (1985).


author: PHIPPS, Presiding Judge.

text:
    A12A2454.
    THE STATE v. GAGGINI.
    (740 SE2d 845)
   PHIPPS, Presiding Judge.

The state appeals from a trial court order granting Alexandra Gaggini’s motion to suppress the results of an Intoxilyzer 5000 breath test obtained at the time of her arrest for unlawfully stopping, standing, or parking on a roadway, and driving under the influence. After her arrest, the state filed an accusation charging Gaggini with driving under the influence of alcohol with an unlawful blood-alcohol concentration (“DUI per se”), driving under the influence of alcohol to the extent that it was less safe for her to drive (“DUI less safe”), and improper stopping, standing, or parking on a roadway. The state contends that the trial court erred in excluding the Intoxilyzer test results because the arresting officer properly read the appropriate implied consent warning. As to the DUI per se charge, the state contends that the trial court erred in basing its ruling, in part, on a finding that there was no admissible evidence that Gaggini had driven within three hours of consuming alcohol. We agree with the state and reverse.

In cases involving the review of the grant of a motion to suppress or motion in limine, we must construe the evidence most favorably to uphold the findings and judgment of the trial court, and that court’s findings as to disputed facts and credibility must be adopted unless clearly erroneous. Where the evidence at a hearing on the motion is undisputed and no question regarding the credibility of witnesses is presented, we review the trial court’s ruling to ensure that there was a substantial basis for it. The trial court’s application of the law to undisputed facts is subject to de novo review.

At the hearing on Gaggini’s motion to suppress, two police officers testified. The first was an officer on patrol who, although not dispatched to the scene of the incident, was close by and responded to the scene within “a couple of minutes” of the call; the second was an officer on the DUI task force, who arrived at the scene soon after the first responding officer and arrested Gaggini. At 3:49 a.m. on February 26, 2011, the first officer responded to a call from dispatch about an “unknown medical problem in reference to a female slumped over in a vehicle in the roadway stopped.” The officer testified that when he arrived on the scene, he observed a vehicle on the side of the road; two individuals were standing near the vehicle, and a female was sitting inside the vehicle.

At the scene, the officer spoke with the complainant, who, according to the officer, told him the following. Approximately 25 minutes before the complainant called the police, the complainant had passed the vehicle which was stopped at a traffic light. When the complainant was returning from her destination, she again came across the vehicle, still stopped in the same position as when she had first seen it. The complainant and another individual walked to the vehicle, and before the officer arrived on the scene, they awakened the driver, who had been asleep at the steering wheel at the light. The driver started to drive away but the complainant and the other individual stopped her and “had her pull over to the side of the road.” At that time, the first responding officer arrived at the scene.

The officer testified that when he arrived at the scene, the vehicle was “off to the side of the road . . . kind of parked up on the curb.” The officer identified Gaggini as the person who was seated in the driver’s seat of the vehicle. The officer testified that as he arrived at the driver’s side door and began talking with Gaggini, her speech was slurred, and he smelled an odor of alcohol coming from the vehicle. Gaggini told the officer that she had been to a bar with some friends and that she had consumed an alcoholic beverage. The officer obtained from Gaggini a driver’s license. No one was in the vehicle with Gaggini. The DUI task force officer who ultimately effectuated the arrest of Gaggini arrived and took over the investigation.

The arresting officer testified that as he arrived at the scene, he observed a vehicle “half on the curb, half on the roadway.” He spoke with the first responding officer about the situation. The arresting officer then approached the vehicle. He testified that the driver, whom he also identified as Gaggini, was “sitting in the driver’s seat of the vehicle. The keys were in the ignition. It wasn’t running but all the lights and dashboard were on. . . . She was leaning forward between the seat and the steering wheel and she was swaying back and forth.” The arresting officer testified that he noticed a strong odor of alcohol coming from the vehicle. He testified that Gaggini’s speech was slow and slurred, and that her eyes were bloodshot and had a glazed look. The arresting officer asked Gaggini to step out of the vehicle, and she swayed as she complied. As Gaggini talked to the officer, he noticed a strong odor of alcohol coming from her breath and person. He concluded that Gaggini was under the influence of alcohol to the extent she was a less safe driver, and he arrested her at 4:26 a.m.

The arresting officer had determined Gaggini’s age from her driver’s license; he retrieved his implied consent card and read verbatim to Gaggini the warning for suspects age 21 and over. A copy of the card was admitted in evidence. According to the officer, Gaggini “didn’t know what to do,” in response to the warning. After he transported her to the jail, he began setting up the Intoxilyzer machine, and he again asked Gaggini whether she wanted to take the test; Gaggini replied “no.” The officer then showed Gaggini a form and explained to her that it would be her temporary driving permit. Gaggini then asked the officer to re-read to her the implied consent warning, which he re-read verbatim. Gaggini stated that she would take the test.

The arresting officer administered the test and obtained two breath samples which showed that at 5:14 a.m., Gaggini had a blood-alcohol concentration level of 0.187; at 5:17 a.m., Gaggini had a blood alcohol concentration level of 0.167. The arresting officer testified that based, in part, on information he received from the first responding officer about what the complainant had told him, he believed that Gaggini had submitted to the Intoxilyzer test within three hours of driving the vehicle. Gaggini did not testify at the hearing.

The trial court, in granting Gaggini’s motion to suppress, pertinently concluded:

[Gaggini] was placed under arrest for driving under the influence and implied consent warnings were read to her and she was advised that her license would be suspended if she did not submit to the state administered breath test. This Court finds that the officer read... the implied consent warning card for drivers licensed by the State of Georgia. Those warnings indicate that a driver’s license will be suspended for failure to provide the requested sample. However, Defendant Gaggini did not have a Georgia driver’s license and thus should have been told that her privilege to drive in Georgia, and not her license, would be suspended.

1. The state contends that the trial court erred in excluding the Intoxilyzer test results because the arresting officer properly read the appropriate implied consent warning. Specifically, the state argues that there was no evidence that Gaggini had an out-of-state driver’s license, and that even if there were evidence that she did, the arresting officer read the only applicable implied consent warning. We agree.

(a) Although the trial court found that Gaggini did not have a Georgia driver’s license, our review of the record does not support this finding. In her appellate brief, Gaggini, citing a page of the hearing transcript, states that she “provided [the officer] with an out-of-state driver’s license.” But evidence that she provided the officer with an out-of-state driver’s license is, in fact, not at the page indicated; nor is it anywhere else in the transcript. The trial court’s finding that Gaggini did not have a Georgia driver’s license was clearly erroneous.

(b) The state contends that the trial court erred in excluding the Intoxilyzer test results because the arresting officer properly read the appropriate implied consent warning. Indeed, the arresting officer testified that he read verbatim to Gaggini the implied consent warning for suspects 21 years of age or over, and a copy of the officer’s implied consent card from which he had read was admitted in evidence.

OCGA § 40-5-67.1 (b) pertinently provides that an arresting officer shall select and read to a person arrested for violation of OCGA § 40-6-391, one of three implied consent notices. The first notice is to be read to suspects under the age of 21; the second notice is to be read to suspects age 21 or over; and the third notice is to be read to suspects driving commercial motor vehicles.

Gaggini does not assert that she was under the age of 21, or that she occupied a commercial motor vehicle. Thus, there was no appropriate implied consent notice that the officer could have read to Gaggini, other than the notice that he had read to her, for suspects age 21 and over. That notice pertinently provided that a suspect’s “Georgia driver’s license or privilege to drive on the highways of this state” would be suspended if she refused to submit to testing. Thus, the notice applied to Gaggini. Accordingly, there was no substantial basis for the trial court’s ruling that Gaggini was not given the proper implied consent warning.

2. As to the DUI per se charge, the state contends that the trial court erred in basing its ruling, in part, on a finding that there was no admissible evidence that Gaggini had driven within three hours of consuming alcohol. We agree.

The trial court, pertinently, found:

[T]he hearsay testimony of what the complainant said is not admissible for the purpose of showing that Gaggini was driving her vehicle within three (3) hours of consuming alcohol. The officers testified that they did not see [Gaggini] drive the vehicle and there was no admissible evidence presented at the hearing that [Gaggini] had driven within three (3) hours of consuming alcohol.

But the test is not whether Gaggini “had driven within three (3) hours oí consuming alcohol.” The test is found in OCGA § 40-6-391 (a) (5), which provides:

A person shall not drive or be in actual physical control of any moving vehicle while: (5) The person’s alcohol concentration is 0.08 grams or more at any time within three hours after such driving or being in actual physical control from alcohol consumed before such driving or being in actual physical control ended[.]

Decided March 28, 2013

And this court has held that “it is not necessary for... probable cause [to effectuate a warrantless arrest], that the driver actually be seen behind the wheel driving the car while under the influence. Such facts, as any others, may be shown by circumstantial evidence.” Moreover, contrary to the trial court’s ruling, “hearsay is admissible in determining the existence of probable cause.”

The first responding officer testified that at 3:49 a.m. he responded to a call from dispatch about a woman slumped over in a vehicle “in the roadway stopped,” but that when he arrived at the scene, Gaggini’s vehicle was located “off to the side of the road... kind of parked up on the curb.” The officer testified that Gaggini was sitting in the driver’s seat of the vehicle, her speech was slurred, and the smell of alcohol emanated from inside the vehicle. Gaggini told the officer that she had been to a bar and had consumed an alcoholic beverage. The arresting officer, who arrived at the scene after the first responding officer, testified that Gaggini was sitting in the driver’s seat of the vehicle, with the keys in the ignition and the dashboard lights on. The arresting officer testified that Gaggini was leaning forward between the seat and the steering wheel and that she swayed back and forth; an odor of alcohol emanated from her breath and person; her speech was slow and slurred; her eyes were bloodshot with a glazed look; she looked lost and confused; and she swayed as she stepped out of the vehicle. The arresting officer, who administered the breath test, testified that at 5:14 a.m., Gaggini’s blood-alcohol concentration level was 0.187.

Even without testimony from the first responding officer about what the complainant had told him, the evidence, although circumstantial, was sufficient to show that Gaggini drove or was in actual physical control of a moving vehicle while her blood-alcohol concentration was 0.08 grams or more within three hours after driving or being in actual physical control from alcohol consumed before such driving or being in actual physical control ended. Accordingly, the trial court erred in granting Gaggini’s motion to suppress.

Judgment reversed.

Ellington, C. J., and Dillard, J., concur.

Rosanna M. Szabo, Solicitor-General, Gary S. Vey, Michael R DiOrio, Assistant Solicitors-General, for appellant.

Barry L. Zimmerman, for appellee.

       OCGA § 40-6-391 (a) (5).

       OCGA § 40-6-391 (a) (1).

       OCGA § 40-6-203 (a).

         State v. Peirce, 257 Ga. App. 623-624 (571 SE2d 826) (2002) (footnotes omitted).

        State v. Gillette, 236 Ga. App. 571, 574 (512 SE2d 399) (1999) (trial court’s factual finding in ruling on motion to suppress was clearly erroneous, as there was no evidence presented at the motion hearing to authorize the finding).

       OCGA § 40-6-391 (prohibiting driving under the influence of alcohol, drugs, or other intoxicating substances; and setting forth penalties).

       See OCGA § 40-5-67.1 (b) (1), (2), (3).

       See OCGA § 40-5-67.1 (b) (2) (emphasis supplied); McHugh v. State, 285 Ga. App. 131, 134 (645 SE2d 619) (2007).

       See State v. Chun, 265 Ga. App. 530, 533 (594 SE2d 732) (2004) (grant of defendant’s motion in limine reversed because there was no substantial basis for the trial court’s legal conclusion that the officer’s statements, which the trial court had found were accurate, were so misleading that they rendered the defendant incapable of making an informed decision about whether to submit to chemical testing).

        State v. Loy, 251 Ga. App. 721, 722 (554 SE2d 800) (2001) (punctuation and footnote omitted).

        Bell v. State, 291 Ga. App. 437, 439 (1) (662 SE2d 248) (2008) (punctuation and footnote omitted).

       See Jarriel v. State, 255 Ga. App. 305, 306-307 (2) (565 SE2d 521) (2002); Loy, supra at 722-723.


author: Ray, Judge.

text:
    A12A2467.
    BRABANT v. PATTON.
    (740 SE2d 857)
   Ray, Judge.

Angela Brabant takes this appeal from the trial court’s order on Phillip Patton’s petition for declaratory judgment and petition for citation of contempt involving issues of custody, visitation, and support. For the reasons that follow, we reverse.

The record shows that Brabant and Patton were granted a divorce on December 19, 1997, in Muscogee County. Pursuant to the terms of their divorce, Patton was named the primary physical custodian of the parties’ two minor children, Allison Marie Patton, born May 12,1991, the subject of the instant action, and her younger brother. The terms of the divorce also, in pertinent part, required Brabant to pay child support to Patton until Allison reached 18 years of age, unless she became 18 years of age while still attending secondary school, in which case support continued until she graduated from secondary school or attained 20 years of age, whichever first occurred.

On July 5, 2010, Patton sent Allison, then 19, and her brother to visit Brabant in Spokane, Washington, where Brabant resided. The children were scheduled to return to Georgia on August 2, 2010. It is undisputed that Allison is mentally challenged and will require care and supervision for the rest of her life. Brabant did not return Allison to Patton at the scheduled time, but instead, on July 22, 2010, Brabant filed a petition for limited guardianship of Allison in the Superior Court of Spokane County, Washington, asserting that Allison had made an independent determination to remain in Washington. In response, Patton filed a “Petition for Declaratory Judgment [and] Petition for Citation of Contempt” in the Superior Court of McIntosh County, Georgia where he resides and where Allison resided prior to traveling to Washington to visit her mother. The petition sought a declaration that Patton was the lawful custodial parent of Allison and that Brabant is required to pay child support until Allison is 20 years old. It also sought an order finding Brabant in contempt for failing to pay child support and failing to comply with the custody provisions of the parties’ divorce decree. Brabant filed an answer and counterclaim and also made an oral motion to dismiss Patton’s petition based on lack of jurisdiction, improper venue, and failure to state a claim upon which relief may be granted.

On September 23, 2010, the trial court issued an order implicitly denying Brabant’s motion to dismiss. In that order, the trial court determined that the Superior Court of McIntosh County had jurisdiction to determine the guardianship of Allison and that “[ujntil otherwise decided by the [c]ourts, Drew Patton is the primary custodial parent and natural guardian of Allison Marie Patton.” Thus, the trial court ordered Brabant to return Allison to Patton within 15 days of the order’s entry, although the court noted that Brabant was free to file a petition for guardianship in McIntosh County. The trial court also transferred the contempt portion of the petition to Muscogee County pursuant to the Uniform Rules of Superior Court.

1. Brabant contends that the trial court erred in failing to dismiss Patton’s petition as it relates to custody and visitation. We agree.

Patton filed his petition seeking a declaration that he is the lawful custodial parent of Allison and requesting that Brabant be held in contempt, in part, for violating the custody/visitation provisions of the parties’ divorce decree. However, at the time Patton filed his petition, Allison had already reached the age of legal majority and was no longer in the custody or control of either parent. Furthermore, the custody/visitation provisions of the parties’ divorce decree had likewise expired. Brabant presented this argument before the trial court in her motion to dismiss and preserved this argument in her enumeration of error on appeal. Because all issues involving custody and visitation in this case had been terminated by operation of law before the petition was filed, the trial court erred in failing to dismiss the portions of the petition relating to custody and visitation on these asserted grounds.

2. Based on our holding in Division 1, we need not address Brabant’s remaining enumerations of error.

Judgment reversed.

Miller, P. J., and Branch, J., concur.

Decided March 28, 2013.

James W. Mcllvaine, Molly D. Mcllvaine, for appellant.

Donald O. Nelson, for appellee.

       In this appeal, Brabant only challenges the trial court’s ruling as it relates to the issues of guardianship, custody and visitation. She does not address the issue of support that was raised in the petition for contempt, which the trial court transferred to another venue for resolution. Thus, our decision does not affect the portion of the contempt action relating to support.

       OCGA § 39-1-1 (a).

       OCGA § 19-7-1 (a).

       See Francis-Rolle v. Harvey, 309 Ga. App. 491, 491-492 (1) (710 SE2d 659) (2011) (The issue of custody rendered moot when the child reached the age of majority and was no longer subject to the custody order.).


text:
    A12A2509.
    WISE v. THE STATE.
    (740 SE2d 850)
   BARNES, Presiding Judge.

Following his conviction for possession of cocaine with the intent to distribute, Derrick Wise appeals from the denial of his motion for new trial. On appeal, Wise enumerates multiple claims of errors, including that the trial court erred in denying his motion to suppress, that similar transaction evidence was improperly admitted, and that the trial court erred in denying his motion to enforce a plea agreement. Following our review, and for the reasons that follow, we affirm.

“On appeal, we must view the evidence ‘in the light most favorable to the verdict and the appellant no longer enjoys the presumption of innocence; moreover, on appeal this court determines evidence sufficiency and does not weigh the evidence or determine witness credibility.’ ” Peters v. State, 281 Ga. App. 385 (1) (636 SE2d 97) (2006).

So viewed, the evidence shows that on February 8, 2002, an Atlanta city police plainclothes detective was on patrol when he noticed a man standing in bushes near an apartment complex. The detective asked him if he lived there, and the man responded that he did, pointed “toward the front of the complex,” and walked away. The detective drove off, then circled back around and saw the same man reaching into the bush he was standing near earlier. He saw the detective, and “whatever he had in his hand, he put it back [in the bush] and walked on out, ran out.” After the man left, the detective retrieved a bag containing 191 hits of crack cocaine from the bush. He was able to identify the man as possibly being nicknamed “Shaq.” Later, after another officer recognized the street name and physical description and showed the detective a picture of the suspect, the detective positively identified Wise as the man he saw reach into the bush.

Police obtained an arrest warrant for Wise. On February 18, 2002, an officer was in the area of the apartments and saw Wise come out of an apartment door. The officer called for an arrest team to assist with executing the warrant. Several officers surrounded the apartment while the officer knocked on the door. He knocked for approximately 35 minutes, and when he did not get an answer, the officer got a key to the apartment from the manager. The key did not work, so he notified his supervisor that Wise was refusing to answer the door, and then used a sledgehammer to break in the door. Wise was found in a rear bedroom and “pretended to be asleep.” There were two young children with him. Wise was indicted for and later convicted of possession of cocaine with intent to distribute.

1. Wise first contends that the trial court erred when it denied his motion to “suppress his arrest.” He maintains that the arrest warrant was not valid, that the warrant did not authorize police to arrest Wise in his home, and that the officers did not adhere to constitutional procedure in executing the arrest. On appeal from the denial of a motion to suppress in which the evidence is uncontroverted, we review the trial court’s application of the law to the undisputed facts de novo. Vansant v. State, 264 Ga. 319, 320 (1) (443 SE2d 474) (1994).

None of the arguments Wise makes on appeal, however, were presented in his written motion, argued before the trial court, or ruled on below. Shortly before the trial, Wise filed a “motion to suppress identification” in which he argued that the pretrial identification procedure used was constitutionally flawed in that the evidence did not establish how police had identified Wise as being the suspect named “Shaq.” He also filed a general motion to suppress evidence of the cocaine found in the bushes, in which he argued in general terms that the evidence was inadmissible because it was incident to an illegal detention. On the first day of the trial, the trial court held a hearing on the motion to suppress. Wise argued that his pre-trial identification should be suppressed because the police report did not establish “how Shaq was identified as Derrick Wise,” and also that he had never received a copy of the arrest warrant. The trial court asked Wise if he wanted to keep the arrest warrant out, and Wise responded that he did not know because he had not looked at the warrant, and did not know what information it contained. The State interjected that because of the seven-year lapse it also did not know how Wise was identified, and thus had met with the officers involved and tracked down the arrest warrant.

The trial court ruled that it would not suppress evidence of Wise’s pre-trial identification, upon verifying that the warrant was referenced in the police report, and ruled that “the warrant [could] come in as well.” The trial court directed the State to provide Wise with a copy of the arrest warrant.

At the opening of the second day of trial, Wise renewed his motion to suppress, and the trial court held another hearing on the motion. Wise called the detective who saw Wise put the drugs in the bushes and who had initiated the investigation that led to the issuance of the arrest warrant. He questioned the detective about the facts leading up to the identification of Wise as the person known as “Shaq,” and the circumstances leading up to acquiring the arrest warrant. Afterward, Wise again argued that his identification should be suppressed because the officers had identified him by merely “a canvassing of the street, getting the name ‘Shaq,’ going to the police department, kicking it around with [another] officer . . . and submitting to this officer that that was the individual.” He further complained that he did not have the picture that the officer used to identify him. The trial court again denied the motion to suppress Wise’s pre-trial identification.

On appeal, however, Wise does not argue that the trial court erred in denying his motion to suppress evidence regarding his pre-trial identification. Instead, he argues issues related to the issuance and execution of the arrest warrant.

“[I]ssues not raised in the trial forum in any form calling for a ruling will not be considered on appeal, for this is a court for correction of errors made by the trial court.” (Citations and punctuation omitted.) Romano v. State, 193 Ga. App. 682 (1) (388 SE2d 757) (1989). Moreover, a motion to suppress must be made “in writing and state facts showing that the search and seizure were unlawful,” OCGA § 17-5-30 (b), to properly place the State on notice of the legal issues to be resolved. State v. Gomez, 266 Ga. App. 423, 425 (2) (597 SE2d 509) (2004). “Neither in his motion nor at the hearing did [Wise] challenge the validity of the arrest warrant.” Seaman v. State, 214 Ga. App. 878, 879 (1) (449 SE2d 526) (1994). For these reasons, we do not consider Wise’s challenge to the denial of his motion to suppress. See Young v. State, 282 Ga. 735, 737 (653 SE2d 725) (2007).

2. Wise next contends that the trial court erred by allowing the State to present evidence to the jury that the reason for the seven-year delay in his trial was because of his bond forfeiture. We do not agree.

The record demonstrates that the State indicated that it planned to introduce evidence of Wise’s bond forfeiture status and the fact that he was picked up on a bench warrant to explain why it had taken seven years for the case to come to trial. Wise objected, arguing that the 2005 trial notice sent to him had been returned and thus he had not gotten notice of the trial, and that should the State be allowed to introduce evidence that he had forfeited his bond, his character would be put into question because the implication would be that he had attempted to flee. The trial court ruled that the State could use the information to explain the delay in the trial and the circumstances of the arrest. We find no error.

“The State is entitled to offer evidence of flight while a defendant is awaiting trial and argue that it demonstrates consciousness of guilt. [Cits.]” Turner v. State, 237 Ga. App. 642, 644 (3) (516 SE2d 343) (1999). “Further, evidence that the defendant forfeited his appearance bond is admissible as tending to show flight.” (Citations and punctuation omitted.) Scott v. State, 216 Ga. App. 692, 693 (2) (455 SE2d 609) (1995) (physical precedent only); Johnson v. State, 148 Ga. App. 702, 703 (1) (252 SE2d 205) (1979). We find no plausible reason why the same evidence cannot be used for a much less prejudicial purpose — to explain a seven-year delay in bringing the case to trial. Although Wise maintained that the fact that the 2005 trial notice was returned showed that he did not know about his trial date, as the trial court noted, it was Wise’s “responsibility to keep the court informed as to his address,” and he was aware that “these criminal cases were out there pending.”

3. Wise contends that the trial court erred in holding that he could not impeach the arresting officer with alleged prior bad acts committed by the officer, which deprived Wise of the opportunity to introduce “crucial rebuttal” evidence. During cross-examination of the officer who served the arrest warrant, he was asked if “Wise [had] ever made any kind of official or . . . internal affairs complaints against you.” Over the State’s objection, which the trial court overruled, the officer responded that he did not know. The officer, who at the time of the trial was assigned to internal affairs, was then asked about the process of making an internal affairs complaint. After the State objected to the relevance of the questioning, the trial court sustained the objection and directed that Wise could only ask the officer about his specific duties in that department.

Later, Wise asked the officer “[is it] your testimony that you don’t have any recollection of any complaint against you by Derrick Wise?” The officer responded, “That is my testimony.” Wise then asked, “were you ever involved in a situation where you kicked in the door of Derrick Wise’s mother’s house?” When the State objected on the basis that the officer had testified that he did not know of any complaint, Wise responded, “This is separate. Depending on his answer, I’ve got an eyewitness outside who would love to be in here.” The State objected, and after a bench conference, the trial court excused the jury.

The trial court then admonished Wise for the improper comment, and instructed that if Wise was attempting to expose some bias that the officer had toward him, then he should ask questions that were relevant and related to the present proceedings. During the ensuing discussion, Wise revealed that he wanted to ask the officer about a 1996 incident in which the officer had allegedly kicked in the door to Wise’s mother’s house to serve a criminal trespass warrant, and that depending on how he answered the question, Wise’s mother was available to testify about the incident.

Wise contended that the incident six years earlier was relevant to the 2002 arrest because it demonstrated that the officer had been “after him” for a while. When asked if the officer had ever been involved in any of Wise’s drug arrests, Wise admitted that he had not, but said that the officer had harassed him in the past. Wise also admitted that the detective had initiated the drug arrest in the instant case, rather than the testifying officer who had merely executed the warrant, and that his mother had not actually filed a complaint about the alleged 1996 incident. He further admitted that the 1996 arrest warrant was valid when the officer allegedly kicked his mother’s door in “so he had the right to do it.”

The trial court ruled that Wise could not

go into this [1996] incident that allegedly occurred— There is no written record of it. You are not trying to use it as a specific bad act. You stated to the court the warrant was valid at the time of this alleged bad act. That the police officer had the right to do it. I don’t understand the relevance of it, and I’m not going to allow it.

To impeach a witness and thereby attack his credibility, one may disprove “the facts testified to by him.” Former OCGA § 24-9-82. Here, as the trial court found, there was no showing made that the excluded testimony contradicted any testimony made by the officer or statements “previously made by [the officer] as to matters relevant to his testimony and to the case.” Former OCGA §§ 24-9-82, 24-9-83, Campbell v. Cozad, 207 Ga. App. 175, 176 (2), 178 (427 SE2d 515) (1993). The alleged 1996 incident was, at best, “related solely to specific bad acts and not to the general bad character of the [witness] .” Heaton v. State, 214 Ga. App. 460, 461 (2) (448 SE2d 49) (1994). Testimony regarding such specific bad acts was not admissible for impeachment purposes. Wetta v. State, 217 Ga. App. 128, 130 (3) (456 SE2d 696) (1995).

Moreover, as noted earlier, the testimony demonstrated the officer was acting on a valid arrest warrant at the time he allegedly kicked in the door to Wise’s mother’s house. This proffered single incident does not reveal misconduct toward Wise to the extent that it would support his allegation that the officer was biased.

Accordingly, the trial court did not err in refusing to admit the evidence.

4. Wise also contends that the trial court erred in allowing similar transaction evidence. Specifically, he contends that the similar transactions — a March 1995 guilty plea for possession of crack cocaine, a September 1995 guilty plea for possession of cocaine, an April 2001 guilty plea for possession of crack cocaine, and a February 2004 arrest for possession with intent to distribute cocaine — were not admitted for an appropriate purpose, and were not factually similar to the case-in-chief. We disagree.

We will not disturb a trial court’s ruling that similar transaction evidence is admissible absent an abuse of discretion. Anderson v. State, 261 Ga. App. 456, 461 (3) (582 SE2d 575) (2003).

[S]imilar transaction evidence is admissible if the State establishes that (1) the evidence is admitted for a proper purpose; (2) sufficient evidence shows that the accused committed the separate act; and (3) there is sufficient connection or similarity between the separate act and the offense charged that proof of the former tends to establish the latter.

(Citation and footnote omitted.) Clark v. State, 272 Ga. App. 89, 90 (611 SE2d 741) (2005). Likewise in drug cases,

[i]f the defendant is proven to be the perpetrator of another drug crime and the facts of that crime are sufficiently similar or connected to the facts of the crime charged, the separate crime will be admissible to prove identity, motive, plan, scheme, bent of mind, or course of conduct.

(Citation and punctuation omitted.) Roberts v. State, 241 Ga. App. 259, 261 (3) (526 SE2d 597) (1999).

In this case, the evidence established that in the March and September 1995 transactions, Wise pled guilty to possession after crack cocaine was discovered in his underwear. The evidence from the April 2001 transaction demonstrated that, after a prearranged drug buy, police recovered 67 hits of crack cocaine from Wise’s car. The February 2004 arrest was made also as a result of a prearranged drug buy, and police recovered approximately 40 grams of cocaine from Wise’s person. That case was still pending at the time of the trial.

In this case, the trial court’s finding that Wise’s prior drug offenses were sufficiently similar was authorized. Howard v. State, 262 Ga. App. 198, 200 (3) (585 SE2d 164) (2003). Moreover, as Wise denied participating in the drug transaction at issue, the similar transactions were relevant and admissible to prove his bent of mind and course of conduct. Id.

Likewise, although the 1995 transactions were somewhat remote in time when the case was tried, we cannot say that they were so far removed from the 2002 incident that the trial court’s decision to admit evidence of the earlier transactions was an abuse of discretion. See Mullins v. State, 269 Ga. 157, 158 (2) (496 SE2d 252) (1998) (even 17-year lapse between similar transaction and crime at issue not so great that trial court’s decision to allow similar transaction evidence was clearly erroneous); Lee v. State, 250 Ga. App. 110, 112 (2) (550 SE2d 696) (2001) (extensive gap between similar transaction and crime at issue goes to weight and credibility and not admissibility).

5. Wise contends that the trial court erred in allowing the State’s witness to testify about cocaine she had tested in Wise’s 2004 similar transaction when there was not a proper chain of custody established.

During the trial, a GBI lab chemist testified about the cocaine she had tested in Wise’s pending 2004 similar transaction. The cocaine was unrelated to the charges for which Wise was on trial, other than showing that the 2004 transaction also involved cocaine. After Wise’s objection, the State withdrew its attempt to admit the cocaine, and introduced the reports instead. The trial court allowed the chemist to testify about her handling of the cocaine, “to say, this is what I did,” and further ruled that Wise could cross-examine her about the chain of custody of the cocaine, which would go to the weight to be given the evidence rather than its admissibility.

To show a chain of custody adequate to preserve the identity of fungible evidence, the State must prove with reasonable certainty that the evidence is the same as that seized and that there has been no tampering or substitution. The State is not required to foreclose every possibility of tampering; it need only show reasonable assurance of the identity of the evidence.

(Citation omitted.) Postell v. State, 279 Ga. App. 275, 278 (2) (630 SE2d 867) (2006)] Armstrong v. State, 274 Ga. 771, 772 (2) (560 SE2d 643) (2002) (“When the State seeks to introduce into evidence an item that is subject to the chain of custody rule, it must establish with reasonable assurance that the item seized is the same as the item being offered into evidence.”).

Here, however, the cocaine was not admitted into evidence; instead, the trial court allowed the chemist to testify that she had indeed tested a substance related to a pending similar transaction that she determined to be cocaine. The State presented this evidence merely to establish the basis for the charge in the pending similar transaction, rather than Wise’s guilt or innocence in the present case. In this circumstance, there was no requirement that the chain of custody account “for the safekeeping and transportation of the evidence from seizure to trial.” Phillips v. Williams, 276 Ga. 691, 692 (583 SE2d 4) (2003). Moreover, in a drug possession case, “the concept of corpus delicti requires that... there be proof by the state that the [accused] possessed . . . the illegal drug; however, there is no invariable requirement that . . . the drug itself be produced.” Chancey v. State, 256 Ga. 415, 421 (349 SE2d 717) (1986).

Thus, as the testimony was offered as proof of the possession charge in the 2004 case, rather than proof of the cocaine that Wise possessed in the present case, the trial court did not err in allowing the chemist to testify about the substance she tested.

6. Likewise we find no merit to Wise’s contention that the trial court erred in failing to enforce Wise’s subpoena of the personnel file of the arresting officer.

“When the defense seeks to discover the personnel files of an investigating law enforcement officer, some showing of need must be made. The need which must be shown is also subject to the general rules of evidence, including a showing of relevancy.” (Citations omitted.) Lopez v. State, 267 Ga. App. 178, 182 (5) (598 SE2d 898) (2004). Contrary to Wise’s contention, the trial court directed that if Wise provided some evidence of the officer’s wrongdoing, he could “recall [the officer] . . . [i]f you’ve got some legitimate evidence that there is an internal affairs record against him.” The trial court ruled that because Wise had not substantiated his allegation as to any complaints against the officer, the officer’s file was irrelevant. It further directed that if Wise contended that he made a complaint against the officer, then he could “certainly take the stand and testify to that.”

[Wise] does not point to any specific report contained in the personnel files which casts doubt upon any officer’s credibility. The officer’s file can have no relevance to the guilt or innocence of the defendant in this case and the trial judge was absolutely correct to deny defendant access to it, the more so because it was to be a fishing expedition and defendant did not know what he hoped to find therein, except his own complaint against the officer.

Decided March 28, 2013.

Ashleigh B. Merchant, for appellant.

Paul L. Howard, Jr., District Attorney, Sheila E. Gallow, Assistant District Attorney, for appellee.

(Citation and punctuation omitted.) Taylor v. State, 182 Ga. App. 494, 496 (1) (356 SE2d 216) (1987). “His general assertion that something in the file [s] might be exculpatory is insufficient to show error. [Cit.]” Pollard v. State, 260 Ga. App. 540, 545 (4) (580 SE2d 337) (2003).

7. Wise last contends that the trial court erred in denying his motion to enforce a plea agreement. Again, we find no error.

The record demonstrated that Wise filed a motion to enforce the State’s plea offer often years on the instant case and another pending case, to serve three with the balance probated. The plea was later withdrawn. Wise maintains he had intended to take the plea offer, but that he was confused about some of the terms and that it was withdrawn while he was getting clarification. The trial court found that based on its recollection, the State was going to resolve both of Wise’s cases together and offered “10 serve 3, both cases, that’s the deal; otherwise, I’m withdrawing the deal. [Wise] .. . didn’t take the deal. The State then says, Your honor, the offer is withdrawn.” The court declined to force the State to offer the plea again, and advised Wise that he was free to enter into a “blind plea” if he so desired, which he did not.

“Because [Wise] did not accept the plea, there is no plea agreement to enforce.” Carson v. State, 264 Ga. App. 763, 764 (592 SE2d 161) (2003). Thus, the trial court did not err in denying Wise’s motion.

Judgment affirmed.

McFadden, J., concurs. McMillian, J., concurs in Divisions 1, 2, 3, 5, 6, and 7, and in the judgment.

       At the time of Wise’s trial, OCGA § 24-9-83 provided as follows regarding the admission of extrinsic evidence of prior inconsistent statements by a testifying witness:
      A witness may be impeached by contradictory statements previously made by him as to matters relevant to his testimony and to the case. Before contradictory statements may be proved against him, . . . the time, place, person, and circumstances attending the former statements shall be called to his mind with as much certainty as possible. . . .