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Christian v. State

Court of Appeals of Georgia

October 7, 2014

CHRISTIAN
v.
THE STATE

DUI, etc. Whitfield Superior Court. Before Judge Partain.

Richard K. Murray, for appellant.

Herbert M. Poston, Jr., District Attorney, McCamy, Phillips, Tuggle & Fordham, Curtis A. Kleem, for appellee.

DILLARD, Judge. Doyle, P. J., and Miller, J., concur.

OPINION

Page 574

Dillard, Judge.

Following a bench trial, Billy Wayne Christian was convicted in probate court of driving under the influence and violating conditions of limited driving. He appealed to the superior court, and his convictions were affirmed. Now, on appeal to this Court, Christian contends that the probate court erred in denying his motion to suppress the State's evidence and in admitting Georgia Crime Information Center [329 Ga.App. 245] (" GCIC" ) printouts when the State failed to lay a proper foundation for same. For the reasons noted infra, we affirm in part and reverse in part.

Viewed in the light most favorable to the guilty verdict,[1] the record reflects that at 8:26 a.m. on July 27, 2010, a law-enforcement officer with the Whitfield County Sheriff's Office observed Christian's pickup truck " gripping" the pavement while making a distinct scratching sound. The officer also noticed that the truck bore a Tennessee license plate, which, in light of the erratic driving, further raised his suspicions about the vehicle being in this particular subdivision that early in the morning. Accordingly, the officer relayed the tag information to dispatch and was informed that the tag returned as " not on file." The officer then stopped the truck to investigate further.

Immediately upon approaching the vehicle, the officer detected the odor of an alcoholic beverage and asked Christian to exit the truck to perform field-sobriety tests. During the investigation that ensued, the officer also learned from dispatch that Christian's license was subject to certain travel restrictions, which he violated because he was driving to a store. Thereafter, Christian exhibited clues of impairment on each field-sobriety test administered, and then returned levels of 0.137 and 0.139, respectively, on two Intoxilyzer 5000 tests. Christian was later tried and convicted of the above-referenced offenses. This appeal follows.

Page 575

1. First, Christian contends that the trial court erred in denying his motion to suppress the State's evidence when the officer lacked a reasonable and articulable suspicion to stop his vehicle. We disagree.

To begin with, in considering a trial court's denial of a motion to suppress, this Court construes the evidence in favor of the court's ruling, " and we review de novo the trial court's application of the law to undisputed facts." [2] Furthermore, we must defer to the trial court's " determination on the credibility of witnesses, and the trial court's ruling on disputed facts must be accepted unless it is clearly erroneous." [3] And in reviewing the denial of a motion to suppress, we consider " all the evidence of record, including evidence introduced at trial." [4]

Additionally, we bear in mind that stopping and detaining a driver to check his license and registration is appropriate when an [329 Ga.App. 246] officer has a reasonable and articulable suspicion that " the driver or vehicle is subject to seizure for violation of the law." [5] In this respect, we have held that a reasonable and articulable suspicion must be " an objective manifestation that the person stopped is, or is about to be, engaged in criminal activity, and that this determination can only be made after considering the totality of the circumstances." [6]

Here, the officer who stopped Christian did so after dispatch relayed that his Tennessee tag number returned as " not on file." And after doing so, the officer investigated Christian's registration of the vehicle and the legality of the tag because, according to the officer's testimony, a return of " not on file" means that the tag has not been registered. Indeed, it is a misdemeanor to " operate any vehicle required to be registered in the State of Georgia without a valid numbered license plate properly validated, unless such operation is otherwise permitted ... ," [7] and this registration requirement applies to nonresidents and out-of-state visitors as well.[8] Accordingly, the officer had a reasonable and articulable suspicion justifying his stop of Christian, and the trial court did not err in denying Christian's motion to suppress.[9]

Page 576

[329 Ga.App. 247] Christian also argues that the trial court erred in permitting the officer to testify as to what dispatch told him regarding the tag's return as " not on file," contending that this testimony was hearsay. However, as the trial court properly determined, this testimony was used not to prove the truth of the matter asserted, but was instead proffered to explain the officer's conduct in deciding to stop the truck and initiate an investigation.[10] Accordingly, this enumeration of error is likewise without merit.

2. Next, Christian argues that the trial court erred by permitting the State to introduce into evidence GCIC printouts without first laying the proper foundation. We agree.

Former OCGA § 24-3-17 provides that any court may

receive and use as evidence in any case information otherwise admissible from the records of the Department of Public Safety or the Department of Driver Services obtained from any terminal lawfully connected to the Georgia Crime Information Center without the need for additional certification of those records.[11]

Thus, we have held that, pursuant to the plain terms of the statute, the State presents a sufficient foundation for the admission of GCIC printouts when it shows that the document was " obtained from a computer terminal lawfully connected to the GCIC." [12] And we have further held that the State accomplishes this when a witness testifies to personally obtaining the printouts from a GCIC terminal[13] or [329 Ga.App. 248] identifies the printouts as having been obtained from a specific GCIC terminal,[14] but not when a witness merely testifies to obtaining a printout from some other source[15] or when the State only argues that a printout was obtained

Page 577

from a lawfully connected terminal.[16]

Here, an employee of the probate court clerk's office testified that she was not authorized to access the GCIC computer but that she had experience reading GCIC printouts and criminal histories. When presented with the State's exhibit, which purported to be a GCIC printout on Christian, the employee testified that it was a GCIC printout " that was obtained in our office" and that two individuals employed in the clerk's office were certified to access the GCIC computer.[17] She further testified that the office had four terminals that could access the GCIC database; that, as far as she knew, all were properly connected; and that only certified clerks were authorized to access the GCIC database in the office. Additionally, she testified that each certified operator had a unique operator number but that, because she was not a certified operator, she did not know the [329 Ga.App. 249] identification numbers for those individuals in the office. Finally, reading the printout, the employee testified that as of the date of Christian's arrest, his driver's license was suspended.

Christian argued below, and argues again on appeal, that the State failed to lay a proper foundation for the admission of the GCIC printout. We agree. The State's witness, although generally familiar with GCIC printouts and how to read criminal histories, did not personally obtain the GCIC printout at issue, was not certified to access a GCIC terminal, and had no personal knowledge as to who accessed the GCIC terminal to acquire the relevant printout. Additionally, although the probate-court employee testified that the printout was obtained from a terminal located in that courthouse, she did not provide any detail as to how she could make such a determination and, in fact, testified that because she was not certified to access GCIC reports, she could not identify unique GCIC operator numbers. Accordingly, the testimony in the case sub judice was tenuous at best and insufficient to satisfy the strict requirement of former OCGA § 24-3-17 (b) that, prior to admission, the State must establish that a GCIC printout was obtained from a computer terminal lawfully connected to the GCIC.[18]

The testimony by the probate-court employee as to the status of Christian's license at the time of his arrest was the only evidence the State presented that Christian was driving in violation of OCGA § 40-5-64, which makes it a crime to operate a motor vehicle in violation of the conditions of a limited driving permit.[19] Accordingly, because the State failed to lay the proper foundation, this evidence was inadmissible hearsay, and the evidence was insufficient to support Christian's conviction for this offense.[20]

Page 578

As such, for all the foregoing reasons, we affirm Christian's DUI conviction and reverse his conviction for violating conditions of limited driving.

Judgment affirmed in part and reversed in part.

Doyle, P. J., and Miller, J., concur.


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