There are many considerations that go into a DUI case. In my business, I get numerous questions regarding the State-Administered Tests and the admissibility of those results at trial. I therefore compiled the following information as a brief introduction to some of the most relevant issues faced by clients.
A. If instrument has been approved for use in this state as specified by administrative rule or as authorized by the Director of the Division of Forensic Sciences, the test results of the instrument are admissible [See Rules of the Georgia Bureau of Investigation, Rule 92-3.06(5); State v. Strickman, 173 Ga.App. 1, 325 SE2d 775 (1984)].
B. State must establish that the instrument has been maintained in good operating condition in order for test results of the instrument to be admissible [State v. Allen, 165 Ga.App. 584, 337 (1983)].
1. Evidence that machine later became inoperable is not grounds for excluding test [State v. Rackoff, 264 Ga.App. 506, 591 SE2d 379 (2003), aff’d 281 Ga. 306, 637 SE2d 706 (2006)].
2. Discrepancy between time in police report and times on machine printout does not exclude test but goes to weight [Young v. State, 275 Ga. 309, 565 SE2d 814 (2002) (less than ten minute variation)].
3. Machine operator may state opinion that it is in “good working order” based upon certification and operation [West v. State, 300 Ga.App. 583, 685 SE2d 486 (2009)].
C. Director of the Division of Forensic Sciences is required to cause each instrument to be checked periodically for calibration and operation and a record of the results of all such checks to be maintained.3 There is a presumption that the Director has caused the instrument used to administer a breath test to be checked periodically for calibration,4 and the defendant must adduce sufficient competent evidence to overcome this presumption [Calloway v. State, 191 Ga.App. 383, 381 SE2d 598 (1989)].
D. Certification of the breath-testing instrument
1. Each time an approved breath-testing instrument is inspected, the inspector shall prepare a certificate which shall be signed under oath by the inspector and which shall include the following language:
"This breath testing instrument (serial no. ____) was thoroughly inspected and standardized by the undersigned on (date _____) and all of its electronic and operating components prescribed by its manufacturer are properly attached and are in good working order."
2. When properly prepared and executed, as prescribed in this subsection, the certificate shall, notwithstanding any other provision of law, be self-authenticating, shall be admissible in any court of law and shall satisfy statutory requirements. OCGA § 40-6-392 (f). OCGA § 40-6-392(f)provision for self authentication of Certificates of Inspection for approved breath testing instruments do not violate defendant's right of confrontation [Rackoff v. State, 281 Ga. 306, 637 SE2d 706 (2006) (Crawford analysis)].
3. GBI rules for inspection required “difference check” reading between .76 and .84 - actual reading was .74 but inspector certified machine. Machine was nevertheless in “good working order,” and discrepancy only went to weight rather than admissibility of result [State v. Carter, 292 Ga.App. 322, 665 SE2d 14 (2008)].
4. When machine is certified, motion in limine challenging “good working order” does not put State on notice as to challenge to validity of inspection and certification [State v. Carter].
E. “Source Code” - the Intoxilyzer has internal programming which the Kentucky manufacturer claims is subject to trade secret protection:
1. Certificate under Uniform Act for Attendance of Witnesses from Without the State (OCGA § 24-10-90 et seq.) does not require Georgia court to determine that the testimony is necessary, only “material” which is “matters having some logical connection with the consequential facts, esp. if few others, if any, know about these matters” [Davenport v. State, 289 Ga. 399, 711 SE2d 699 (2011)]; the foreign state (here Kentucky) makes the determination whether the witness meets the higher “necessary” standard.
2. However, Davenport’s analysis was refined by Cronkite v. State, 293 Ga. 476, 745 S.E.2d 591 (2013) which held that the possibility of error in how the source code handled mouth alcohol did not justify a finding of materiality where there was not affirmative evidence of the presence of mouth alcohol (see BOX, below).
3. The certificate may be directed to a corporation and need not name a particular person [Yeary v. State, 289 Ga. 394, 711 SE2d 694 (2011)].
4. Kentucky courts (home of Intoxilyzer’s manufacturer) do not permit a “fishing expedition” for subpoenaing evidence, party must show more than hope of conjecture that evidence will be useful
NOTE - Initially, it appeared that in any per se prosecution; see Spann v. State, 318 Ga.App. 740, 743, 736 S.E.2d 749 (2012) (relatively minimal standard) the “source code” was material, but after the Kentucky trial court denied such requests summarily based on House, this conclusion has been reexamined.
The apparent straightforwardness of Davenport was modified in Cronkite v. State, 293 Ga. 476, 745 S.E.2d 591 (2013) . There, the defendant had a dental implant and contended that it could have trapped mouth alcohol. The breath test is based on measuring deep lung air where the percentage of alcohol is correlated with the percentage of alcohol in the blood. Defendant stated he needed to analyze whether the ‘source code’ adequately safeguarded against that a error measure would be generated when the mouth alcohol would significantly affect the reading. Although the Supreme Court rejected the Court of Appeals conclusion that defendant had to first show some evidence of error in the code, it faulted Defendant for failing to offer a factual basis for concluding that mouth alcohol was present during the test. Conkrite also “alerted the bench and bar” (in footnote 3) to the possibility that a trial court may have discretion to deny the certificate even when a showing of materiality is made.
(Although decided on narrow grounds, both Phillips and Conkrite may well indicate that the Georgia appellate courts recognize they have hit a sort of dead end in the “source code” cases and are ready to avoid the issue, especially with respect to the old Intoxilyzer 5.)
The Nahmias concurrence in Davenport suggests that in the proper case there could be a constitutional due process challenge to the statutory scheme of allowing the state to introduce a test result where there is no witness who understands how the machine operates, and the information on that is not available through discovery.
Evidence - are showings as to materiality of the witness bound by the rules of evidence? OCGA 24-1-2(c) and 24-1-104(a) (qualification of a person to be a witness - similar to Daubert issues) may suggest not.[Commonwealth v. House, 295 S.W.3d 825 (Ky. Sup. Ct., 2009)
5. Where trial court granted certificate of materiality and Kentucky trial court denied production, Georgia trial court was not required to stay case pending appeal, but could give trial court decision full faith and credit and proceed to trial [Phillips v. State, (324 Ga. App. 728751 SE 2d 526 (2013)]
6. “Full information” statute does not require production by State (see 1.66)
F. Breath tests in Georgia are usually conducted on the Intoxilyzer 5000. However, the Director of the Division of Forensic Sciences is authorized to approve the design of any other type of breath alcohol analyzer used in the state. See Rules of the Georgia Bureau of Investigation, Rule 92-3-.06(5).
G. Two Samples
1. The Intoxilyzer 5000 requires two breath samples that must be within .02 grams of each other [Davis v. State, 237 Ga.App. 817, 517 SE2d 87 (1999); OCGA § 40-6-392 (a) (1) (B)].
2. No more than two sequential series of a total of two adequate breath samples each are to be required by the State; “an adequate breath sample shall mean a breath sample sufficient to cause the breathtesting instrument to produce a printed alcohol concentration analysis.” OCGA § 40-6-392 (a) (1) (B).
3. If the samples fall within this window, but differ, the operator is instructed to use the lower reading.
4. Where only one sufficient sample is given, State may admit test into evidence [Chamberlain v. State, 246 Ga.App. 423, 541 SE2d 64 (2000); Thrasher v. State, 292 Ga.App. 566, 666 SE2d 28 (2008) (irrespective of whether failure to complete is defendant’s fault)], and Defendant's request for independent test must be complied with [Chamberlain].
H. An intox 5000 test may be used in a “less safe case” even though the test is above 0.10 grams [Sullivan v. State, 235 Ga.App. 768, 510 SE2d 136 (1998); but see Clay v. State, 193 Ga.App. 377, 378(2), 387 SE2d 644 (1989) (intox test could not be used where no manifestations of intoxication present because the jury rejected the test as unreliable)].
I. “20 minute rule” - Non-compliance with 20-minute rule does not make a test inadmissible, and goes only to the weight of the evidence [State v. Palmaka, 266 Ga.App. 595, 597 SE2d 630 (2004) (unanimous, en banc decision reversing trial court and disapproving Casey v. State, 240 Ga.App. 329, 331(3), 523 SE2d 395 (1999)); [Bagwell v. State, 248 Ga.App. 806, 547 SE2d 377 (2001); see also Klink v. State, 272 Ga. 605, 607(2), 533 SE2d 92 (2000) (20 minute rule not administrative rule of GBI].
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