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REYNOLDS v. STATE

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Court of Appeals of Georgia.

REYNOLDS v. The STATE.

No. A97A2024.

Decided: January 14, 1998

Sidney L. Moore, Jr., Atlanta, for appellant. Gerald N. Blaney, Jr., Solicitor, Richard E. Thomas, Assistant Solicitor, for appellee.

John C. Reynolds was convicted of driving under the influence of alcohol, driving with an unlawful alcohol concentration, and failure to maintain lane.

After observing Reynolds' truck drifting outside his lane on an interstate highway, the arresting officer stopped Reynolds, who smelled strongly as though he had been drinking, slurred his speech, was flushed, had watery eyes, and admitted to having one drink.   After conducting several field sobriety tests, the officer arrested Reynolds and took him to the station for a breath test which measured .145 and .149.   Held:

 1. We reject Reynolds' contention that the admission, pursuant to OCGA § 40-6-392(f), of certificates showing the breath testing device was properly inspected, tested, and standardized violated the rule against hearsay.   Reynolds maintains that the certificate lacked a proper foundation because the State failed to inquire whether it was in the regular course of business to make the record at the time of the act.

Although Reynolds asserted a hearsay objection to this evidence during a hearing on his motion in limine, the record shows that Reynolds never objected to the inadequacy of the foundation for this evidence.  Reddin v. State, 223 Ga.App. 148, 152-153(5), 476 S.E.2d 882 (1996).   Therefore, the error was waived.   See McGee v. State, 205 Ga.App. 722, 729(12), 423 S.E.2d 666 (1992).

2. Reynolds' claim that the admission of the certificate of inspection violated his right to confrontation is foreclosed by Brown v. State, 268 Ga. 76, 81, 485 S.E.2d 486 (1997).

 3. The trial court properly denied Reynolds' motion for directed verdict on the charge of driving with an unlawful blood alcohol content.   The certification of inspection, the officer's testimony that Reynolds had been driving, and the blood alcohol test results taken shortly thereafter showing a concentration of .145 were sufficient to allow the jury to find all the essential elements of the offense.  OCGA § 40-6-391(a)(5);  Carter v. State, 222 Ga.App. 397(1), 474 S.E.2d 228 (1996) (the standard for reviewing the denial of a directed verdict of acquittal is the same as that for reviewing the sufficiency of the evidence).

4. Reynolds maintains that the jury charge on expert witnesses was incomplete because it failed to state that the jury was not bound by the testimony, even if unopposed.   The charge on credibility of witnesses adequately covered the concept at issue.  Willingham v. State, 268 Ga. 64, 66(5), 485 S.E.2d 735 (1997) (charge reviewed as a whole).   Moreover, the charge given was previously approved by the Court.  New v. State, 171 Ga.App. 392(5), 393, 319 S.E.2d 542 (1984).   In any event, the fact that neither party called an expert undermines Reynolds' argument.

Judgment affirmed.

HAROLD R. BANKE, Senior Appellate Judge.

POPE, P.J., and JOHNSON, J., concur.

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