State of Georgia v. James Lamb

Court of Appeals of the State of Georgia

ATLANTA,_________________ May 07, 2012

The Court of Appeals hereby passes the following order: A12I0201. STATE OF GEORGIA v. JAMES BEAUREGARD LAMB.

The State of Georgia filed this application for interlocutory appeal from the trial court’s order granting DUI defendant James Beauregard Lamb’s motion in limine to suppress or exclude evidence that he refused state-administered chemical testing. Following a hearing, the trial court assumed, without deciding, that Lamb had initially refused testing, but the court concluded that he had subsequently rescinded his refusal. The State’s right of appeal in criminal cases is regulated by OCGA § 5-7-1. State v. Land-O-Sun Dairies, 204 Ga. App. 485, 486 (419 SE2d 743) (1992). OCGA § 5-7-1 (a) (4) permits the State to appeal “[f]rom an order, decision, or judgment suppressing or excluding evidence illegally seized. . . .” We have construed this provision to permit an appeal from the grant of “any pre-trial motion to exclude evidence on the ground that it was obtained in violation of law.” (Emphasis in original.) State v. McKenna, 199 Ga. App. 206, 207 (404 SE2d 278) (1991). However, “[t]here is no basis for the State’s appeal of an order granting a defendant’s motion in limine on general evidentiary grounds.” Berky v. State, 266 Ga. 28, 29 (463 SE2d 891) (1995); see also State v. Kramer, 260 Ga. App. 546, 547 (1) (580 SE2d 314) (2003). Lamb’s motion did not seek the exclusion of evidence on the ground that it had been obtained in violation of law. Instead, he sought to exclude evidence of his refusal to take a state-administered test on the ground that he had not, in fact, refused the test; or, if he had, he had later rescinded that refusal. “Since the order from which this appeal has been taken is not one which is enumerated in OCGA § 5-7-1, the

State’s compliance with the requirements for securing an interlocutory appeal [did] not serve to confer the requisite jurisdiction upon this court.” Id.; see also State v. Lavell, 214 Ga. App. 525 (448 SE2d 270) (1994). Because the State has no right of appeal here – interlocutory or otherwise – this application is hereby DISMISSED for lack of jurisdiction.

Court of Appeals of the State of Georgia 05/07/2012 Clerk’s Office, Atlanta,_________________ I certify that the above is a true extract from the minutes of the Court of Appeals of Georgia. Witness my signature and the seal of said court hereto affixed the day and year last above written.

, Clerk.