jury trial, Gregory Claude Adams was found guilty of driving
under the influence of alcohol to the extent that he was less
safe to drive, failure to maintain lane, and following too
closely. He appealed, asserting as error the admission of
evidence regarding a stipulation in an administrative license
suspension hearing pursuant to OCGA § 40-5-67.1 and
evidence of a 2011 arrest for DUI. The Court of Appeals
affirmed his convictions in Adams v. State, 344
Ga.App. 159 (809 S.E.2d 87) (2017), and we granted certiorari
to consider this ruling. Although we do not agree with all
that is stated in the Court of Appeals' opinion, we
conclude that Adams has affirmatively waived the first claim
and has failed to demonstrate error with respect to the
second claim, and we therefore affirm the judgment of the
Court of Appeals.
underlying facts are not in dispute. In July 2016, after a
one-vehicle accident, Adams was arrested for DUI and other
offenses and declined to take the state-administered blood
test. The trooper who arrested Adams then initiated an
administrative suspension of Adams' license pursuant to
OCGA § 40-5-67.1. At an administrative hearing in the
suspension proceeding, the trooper and Adams' counsel
executed a written agreement, which the trooper testified was
a "joint motion to withdraw the license
suspension." This agreement provided that the trooper
would withdraw the sworn report made pursuant to OCGA §
40-5-67.1, in return for Adams' promise to enter a guilty
plea to the underlying DUI charge. If Adams failed to enter a
guilty plea to DUI, the agreement authorized the trooper to
obtain an order reinstating the administrative license
suspension without a hearing.
did not plead guilty to the DUI charge and instead went to
trial. At trial, the State presented evidence of the
agreement through the trooper who arrested Adams, and a copy
of the agreement was admitted into evidence. The State also
presented evidence of Adams' 2011 arrest for DUI, in
which he declined the state-administered blood test and
ultimately pled guilty to reckless driving. Following
Adams' conviction for DUI and other offenses, he appealed
to the Court of Appeals.
Court of Appeals reviewed the admission of the agreement only
for plain error because Adams did not object at trial to its
admission. See Adams, 344 Ga.App. at 162-163 (1).
The Court of Appeals concluded that Adams could not
demonstrate a clear or obvious error due to its earlier
decision in Flading v. State, 327 Ga.App. 346 (759
S.E.2d 67) (2014), which held that a trial court did not
abuse its discretion by admitting into evidence at a DUI
trial a written stipulation in an administrative license
suspension proceeding. See id. at 348-351 (1). The Court of
Appeals also held that Adams, by failing to designate
necessary portions of the record on appeal,
"procedurally waived" his argument that the
probative value of the evidence of the 2011 DUI incident was
substantially outweighed by the risk of unfair prejudice
under OCGA § 24-4-403. See Adams, 344 Ga.App.
at 170 (4) (c).
first consider whether the Court of Appeals erred in
upholding the trial court's admission of the
administrative license suspension agreement at Adams'
criminal trial. Adams contends that Flading was
wrongly decided, violated Georgia public policy without
giving any reason for doing so, and in any event is factually
distinguishable given the absence in Adams' agreement of
any stipulation that the agreement would be admissible in any
subsequent legal proceeding.
agree with the Court of Appeals that Adams forfeited ordinary
review of this claim of error by failing to object at trial
to the admission of the agreement. See Adams, 344
Ga.App. at 162 (1). "In order to preserve an objection
for [ordinary] appellate review, the specific ground of the
objection must be made at the time the challenged evidence is
offered." (Citations, punctuation, and footnote
omitted.) Anthony v. State, 302 Ga. 546, 549 (II)
(807 S.E.2d 891) (2017). As we noted in Anthony, our
new Evidence Code permits "plain error review of certain
unpreserved evidentiary errors affecting substantial rights.
See OCGA § 24-1-103 (d)." 302 Ga. at 549 n.4.
However, Adams not only failed to object in the trial court
on the ground he asserts on appeal; he affirmatively waived
any claim of error in the admission of the agreement.
four-prong plain error test we adopted in State v.
Kelly, 290 Ga. 29, 33 (2) (a) (718 S.E.2d 232) (2011),
requires: "First, there must be an error or defect -
some sort of deviation from a legal rule - that has not been
intentionally relinquished or abandoned, i.e., affirmatively
waived, by the appellant." (Punctuation omitted.) Here,
the following exchange took place immediately before opening
statements at trial:
THE STATE: [T]he State would like a declaratory ruling by the
Court to make things run smoother at trial. The State plans
to introduce a document entitled joint motion to withdraw a
sworn report. This is filed on September 21st of 2016 and
dated September 20th of 2016 in which the defendant Gregory
Adams agreed to enter a plea of guilty to the underlying DUI
on or before December 1st of 2016 in exchange for the GSP
Trooper Michael Talton withdrawing the ALS proceeding. The
State believes there will be some opposition to the admission
of this and would like to go ahead and have that evidentiary
issue [decided] now to streamline the presentation of
THE COURT: Mr. Sliger?
MR. SLIGER [Adams' counsel]: Judge, we don't object.
I think it is proper to come in.
THE COURT: All right.
supplied.) Thus, Adams affirmatively waived any claim of
error from the admission of the agreement, so there was no
plain error. See, e.g., Adkins v. State, 301
Ga. 153, 156 (2) (800 S.E.2d 341) (2017), and cases cited
therein; Lee v. State, 347 Ga.App. 508, 512 (2) (b)
(820 S.E.2d 147) (2018) (on plain error review,
defendant's affirmative statement that he had no
objection to charge on stipulation waived any claim that
trial court improperly referenced stipulation). We express no
opinion on the Court of Appeals' decision in
Flading or its applicability to the facts presented
next consider whether the Court of Appeals erred in holding
that Adams "procedurally waived" his enumeration of
error concerning OCGA § 24-4-403 ("Rule 403").
See Adams, 344 Ga.App. at 170 (4) (c). We do not
agree with this characterization, but we agree that Adams is
unable to ...