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Dora J. Chernowskiv.The State

CourtCourt of Appeals of Georgia
Docket No.A14A2151
DecidedFebruary 12, 2015
Reporter330 Ga. App. 702; 769 S.E.2d 126
JudgesCourt of Appeals of Georgia, Fourth Division; Presiding Judge Doyle and Judges Miller and Dillard; Judge Dillard authored the opinion
Tags
CriminalCriminal ProcedureEvidenceAppellate ProcedureDue ProcessMergerVacaturRemand
Case Summary

Dora Chernowski was convicted of DUI per se, DUI less safe, and failure to maintain lane after a 2004 single-vehicle accident. She argued that the nearly seven-year delay in transmitting her appellate record violated due process and that the trial court should have suppressed her blood-test results under Georgia’s Implied Consent law. The Court of Appeals declined to consider the due-process claim because Chernowski had not raised it below; it also noted that she had not used the statutory procedure to complete the record. Because the record lacked the suppression motion, the order, and the hearing transcript, the court presumed the evidence supported the trial court’s denial of the pretrial suppression motion. On the renewed motion at trial, the court found no reversible error: the officer testified that he issued citations before reading the implied-consent notice, and the credibility dispute was for the trial court to resolve. Although merger was not raised on appeal, the court vacated the sentence and directed the trial court to merge the less-safe DUI count into the per-se DUI count before resentencing. It otherwise affirmed the convictions and remanded for resentencing under that instruction.

Opinion

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