In the early morning of 5/30/2008, Sandor Korponai failed to negotiate a left turn, lost control of his truck, and crashed into a fence on private property in Union County Georgia. Upon awakening, the owner called 911. The owner noted a smell of alcohol on Kornopai, a lack of balance, and slurred speech. After assessing the scene, the officer asked Korponai to walk up a hill to where his car was parked. The officer testified that Korpanai fell down multiple times walking up the hill. At the scene the officer noticed the stench of alcohol about Korponai and his slurred speech. When asked, Korponai refused a hand-held breath test, and once arrested, refused the state-administered Intoxilyzer 5000 breath test. The officer testified that he did not perform any field sobriety tests at the scene because of concern for the appellant's safety as he had already fallen down twice. Korponai was found guilty of less-safe DUI in Union County Superior Court and the Court of Appeals affirmed the Blairsville, Georgia Trial Court's verdict. The bulk of Korponai's appeal deals with ineffective counsel, but here we examine Korponai's claim that the trial court, when it delivered the pattern charge to the jury regarding the Georgia DUI Implied Consent rights, violated OCGA §17-8-57. The Court disagreed, and in doing so, outlined and clarified the legal foundation by which OCGA §17-8-57 may be used to appeal the outcome of a trial.
OCGA §17-8-57 states that it is an error for a judge in any criminal case to intimate his or her opinions regarding what or what not has been proven or as to the guilt of the accused. Kornopai claimed that when the trial court instructed the jury on matters pertaining to DUI Implied Consent laws it intimated his guilt, damaging his defense. The Court, for one, upheld that the trial court did not in fact infringe upon OCGA §17-8-57:
"The record shows that the trial court charged the jury that a 'test or tests shall be administered at the request of the law enforcement officer who has reasonable grounds to believe' that a person has been driving under the influence. This part of the charge reproduced the language set out in implied consent statute.”
Also, the Court explained that since Korponai did not object to the pattern charge at the trial court level, the OCGA §17-8-57 objection became moot (Vergara v. State, 287 Ga. 194, 197 (2) (695 SE2d 215) (2010). Since Korponai did not initially object to the pattern charge, “it [thus] appears that [the] appellant is actually arguing that the trial court gave an incorrect statement of law” rather than more formally appealing under OCGA §17-8-57 (the Judge intimated an opinion of guilt). Vergara v. State specifically deals with curtailing Kornopai's attempted maneuver: that OCGA §17-8-57 cannot be appealed after the initial trial without a timely objection to the statement(s) in question at the trial level. In this instance, it was not found that the trial court erred in its pattern charge to the jury regarding implied consent. But if it had, and Kornopai still failed to object the pattern charge at trial, so the effect of his appeal under OCGA §17-8-57 would not differ.