Smith v. State

140 Ga. App. 339 (1976)

231 S.E.2d 91

SMITH v. THE STATE. CHASTAIN v. THE STATE. DEADWYLER v. THE STATE. FOSTER v. THE STATE. HENDRIX v. THE STATE.

52930, 52935, 52936, 52937, 52938.

Court of Appeals of Georgia.

Argued October 5, 1976.

Decided October 19, 1976.

Rehearing Denied November 4, 1976.

Guy B. Scott, Jr., for appellants.

Ken Stula, Solicitor, for appellee.

WEBB, Judge.

These five appeals from the State Court of Clarke County seek to have overturned the respective convictions of driving under the influence of alcohol.

1. (a) In the Chastain and Foster appeals timely attacks were made upon the accusations on the ground that there were no supporting affidavits. "`A valid affidavit is essential to support an accusation and without such an affidavit the whole trial is a nullity.'" Martin v. State, 139 Ga. App. 8 (228 SE2d 15); Chauncey v. State, 129 Ga. App. 207, 208 (199 SE2d 391). Accord, Willoughby v. State, 137 Ga. App. 789 (225 SE2d 65).

While the state contends that the prosecution could have rested upon traffic citations without affidavits as provided for by the Uniform Traffic Citation and Complaint Form (Code Ann. §§ 92A-2701, 92A-2704), the prosecution in fact rested upon standard accusations, and the law with respect to accusation controls. Willoughby v. State, 137 Ga. App. 789, supra, (1b). See also Williams v. City of Atlanta, 135 Ga. App. 765 (219 SE2d 17). These trials were nullities.

(b) In the Smith and Deadwyler appeals, the attacks upon the accusations were first made in the motions for new trial, which was too late. Wade v. State, 133 Ga. App. 810 (212 SE2d 466). Accordingly no reversible error appears as to the accusations. 2. In the Smith and Deadwyler appeals, defendants were informed of their right to have additional blood or breath tests made but were not advised of their right to have chemical analyses made of their urine. Accordingly the motion to suppress the results of the intoximeter tests should have been granted. Hulsey v. State, 138 Ga. App. 221 (225 SE2d 752).

3. The only complaint in the Hendrix appeal is the overruling of the motion for new trial on the general grounds. The evidence was sufficient, and no reversible *340 error appears.

Judgments reversed in Case Nos. 52935 and 52937 for reasons stated in Division 1 (a); judgments reversed in Case Nos. 52930 and 52936 for reasons stated in Division 2; judgment affirmed in Case No. 52938. Deen, P. J., and Smith, J., concur.