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State v. Fedrick

Court of Appeals of Georgia

September 16, 2014

THE STATE
v.
FEDRICK

Cert. applied for.

DUI. Cobb State Court. Before Judge Thompson.

Barry E. Morgan, Solicitor-General, Dana J. Norman, Danielle E. Russell, Michael D. Deariso, Assistant Solicitors-General, for appellant.

Robert W. Chestney, Laura K. Wester, for appellee.

Andrews, P. J., and McFadden, J., concur.

OPINION

Page 740

Ray, Judge.

The State appeals from the trial court's order granting Shaun Fedrick's motion to suppress evidence of the results of a state-administered chemical test of his breath following his arrest for driving under the influence of alcohol. Because the trial court erroneously found that the police officer's inclusion of certain words during his reading of the implied consent notice altered the substance of the notice and affected Fedrick's consent to testing, we reverse.

[329 Ga.App. 76] 1. We first address the issue of whether the State preserved the issue for appeal by providing a proffer of the results of the breath test. We have held that

[w]here the error alleged is that certain evidence has been wrongfully excluded, the rule is well settled that there must have been a proffer or offer of a definite sort so that both the trial court and the appellate court can know whether the evidence really exists. In the absence of such a proffer, the assignment of error is so incomplete as to preclude its consideration by this [C]ourt.

(Citations omitted.) State v. Winther, 282 Ga.App. 289, 291 (638 S.E.2d 428) (2006). Here, the record shows that a copy of the citation was filed with the trial court on June 10, 2013, some five months before the hearing on the motion to suppress. This document shows that Fedrick submitted to a state-administered breath test and that the results indicated a blood alcohol concentration of 0.165 grams. As the record does indicate that Fedrick submitted to a breath test and that the results showed an unlawful

Page 741

blood alcohol concentration, we shall address the merits of the appeal.

2. In its sole enumeration of error, the State contends that the trial court erred in granting the motion to suppress based on the officer's reading ...


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