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Chernowski v. State

Court of Appeals of Georgia

February 12, 2015

CHERNOWSKI
v.
THE STATE

DUI, etc. Fulton State Court. Before Judge Eady.

Judgment affirmed in part and vacated in part, and case remanded with direction.

Steven J. Strelzik, Mary Trachian-Bradley, for appellant.

Carmen D. Smith, Solicitor-General, R. Leon Benham, Pamela C. Henderson, Assistant Solicitors-General, for appellee.

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

OPINION

Page 127

Dillard, Judge.

Dora Chernowski appeals the verdict and judgment entered against her on counts for driving under the influence and failure to maintain lane, for which she was tried and convicted after a single-vehicle accident in December 2004.[1] On appeal, Chernowski contends that (1) her due-process rights were violated by the trial-court clerk's failure to transmit a complete record and a seven-year delay in transmitting the record and (2) the trial court erred in denying her [330 Ga.App. 703] pretrial motion to suppress evidence and her renewed motion at trial as to that same evidence. For the reasons set forth infra, we affirm Chernowski's convictions but vacate and remand the case to the trial court for resentencing.

Viewed in the light most favorable to the jury's guilty verdict,[2] the record reflects that on December 26, 2004, emergency personnel were dispatched at approximately 9:30 p.m. to the location of a single-car accident on a residential portion of Spalding Drive in Fulton County. And upon arrival, Chernowski's vehicle was found turned on its side against a utility pole with Chernowski standing up inside the vehicle, trying to escape. A fire-department crew removed the vehicle's windshield to extract Chernowski, and she was immediately treated by medical personnel with a neck brace, strapped to a backboard, and transported to a hospital for additional treatment and evaluation.

Prior to Chernowski being transported from the scene, the responding police officer made brief contact with her as she was being treated by medical personnel. The officer did not perform any field-sobriety tests upon

Page 128

Chernowski because she was undergoing treatment until her transfer to the hospital, but he testified at trial that, upon contact with her, he noticed that she spoke with slurred speech, had very watery eyes, and reeked of a " very strong odor" of an alcoholic beverage. Additionally, Chernowski admitted to the officer that she had consumed alcohol as recently as 45 minutes prior to the accident. And based upon these factors, the officer was convinced that Chernowski was driving under the influence of alcohol to the extent that it was less-safe to do so. The officer's trial testimony was corroborated by that of the fire-department crew chief, who also testified that Chernowski spoke with slurred speech and smelled of an alcoholic beverage, and that he suspected she had been driving under the influence of alcohol.

After Chernowski's vehicle was impounded, the responding officer drove to the hospital where he immediately issued citations to Chernowski for driving under the influence and failure to maintain lane. He testified that because Chernowski was still undergoing medical treatment, he left the citations with her belongings rather than with her personally. And after having Chernowski sign the citations and explaining the charges, the officer read to her Georgia's Implied Consent law and asked for her permission to administer a blood test, to which Chernowski agreed. The results of the test showed a blood-alcohol level of 0.228 grams.

[330 Ga.App. 704] Thereafter, Chernowski was charged by accusation for DUI per se,[3] DUI less-safe,[4] and failure to maintain lane.[5] She was then tried by a jury in August 2007, convicted on all counts, and the trial court then sentenced her on each of those counts. Chernowski timely filed a notice of appeal on August 24, 2007, and the trial court granted a supersedeas bond that same day. Nevertheless, the appeal was not docketed with this Court until July 25, 2014, ...


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