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Lawskills.com Georgia Caselaw
TILLER v. THE STATE.
71449.
BANKE, Chief Judge.
D.U.I. Clarke State Court. Before Judge Pittard.
The affirmative waiver requirement set forth in Division 4 of Steed v. City of Atlanta, 172 Ga. App. 839 (325 SE2d 165) (1984), has since been "disavowed" by this court in an opinion written by the same judge who authored Steed. See State v. Dull, 176 Ga. App. 152 (335 SE2d 605) (1985). Accordingly, it is now clear that in the absence of testimony by a defendant that he was refused the opportunity for an independent test, the state's burden is merely to show that the defendant was properly advised of his rights. Furthermore, "[w]here there is a conflict over whether a defendant was advised of his right to an additional test, resolution of the question of credibility is for the trial court. Hunter v. State, 143 Ga. App. 541 (239 SE2d 212) (1977); Rayburn v. State, 140 Ga. App. 712 (231 SE2d 383) (1976)." State v. Dull, supra at 153.
In the present case, the state not only satisfied this burden of proof, it also introduced evidence of an affirmative waiver of the right by the defendant. Thus, the evidence in this case would have supported the denial of the motion to suppress even under the now discredited ruling in Steed.
Ken Stula, Solicitor, for appellee.
Howard Tate Scott, for appellant.
DECIDED NOVEMBER 8, 1985.
Thursday May 21 17:15 EDT


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