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Georgia DUI Formalities for Blood/Breath Tests

by merlin on January 4th, 2015
  • Sumo

In Georgia, the basic crimes for the offense of Driving Under the Influence are “Less Safe” and “Per Se” offenses.  The former involves demonstrating the manner in which a vehicle was operated, while the latter merely involves showing that a person’s blood-alcohol concentration (or BAC) exceeded a certain level, 0.08 parts per gram or more, within three (3) hours of operating a motor vehicle.  The statute describing these conditions is Section 40-6-391 of the Official Code of Georgia.

Of particular interest are the multitude of rules and regulations that govern proof of that BAC number.  The actual statute that governs it is Section 40-6-392, which reads as follows:

(a) Upon the trial of any civil or criminal action or proceeding arising out of acts alleged to have been committed by any person in violation of Code Section 40-6-391, evidence of the amount of alcohol or drug in a person’s blood, urine, breath, or other bodily substance at the alleged time, as determined by a chemical analysis of the person’s blood, urine, breath, or other bodily substance shall be admissible. Where such a chemical test is made, the following provisions shall apply:

(1) (A) Chemical analysis of the person’s blood, urine, breath, or other bodily substance, to be considered valid under this Code section, shall have been performed according to methods approved by the Division of Forensic Sciences of the Georgia Bureau of Investigation on a machine which was operated with all its electronic and operating components prescribed by its manufacturer properly attached and in good working order and by an individual possessing a valid permit issued by the Division of Forensic Sciences for this purpose. The Division of Forensic Sciences of the Georgia Bureau of Investigation shall approve satisfactory techniques or methods to ascertain the qualifications and competence of individuals to conduct analyses and to issue permits, along with requirements for properly operating and maintaining any testing instruments, and to issue certificates certifying that instruments have met those requirements, which certificates and permits shall be subject to termination or revocation at the discretion of the Division of Forensic Sciences.

(B) In all cases where the arrest is made on or after January 1, 1995, and the state selects breath testing, two sequential breath samples shall be requested for the testing of alcohol concentration. For either or both of these sequential samples to be admissible in the state’s or plaintiff’s case-in-chief, the readings shall not differ from each other by an alcohol concentration of greater than 0.020 grams and the lower of the two results shall be determinative for accusation and indictment purposes and administrative license suspension purposes. No more than two sequential series of a total of two adequate breath samples each shall be requested by the state; provided, however, that after an initial test in which the instrument indicates an adequate breath sample was given for analysis, any subsequent refusal to give additional breath samples shall not be construed as a refusal for purposes of suspension of a driver’s license under Code Sections 40-5-55 and 40-5-67.1. Notwithstanding the above, a refusal to give an adequate sample or samples on any subsequent breath, blood, urine, or other bodily substance test shall not affect the admissibility of the results of any prior samples. An adequate breath sample shall mean a breath sample sufficient to cause the breath-testing instrument to produce a printed alcohol concentration analysis.

(2) When a person shall undergo a chemical test at the request of a law enforcement officer, only a physician, registered nurse, laboratory technician, emergency medical technician, or other qualified person may withdraw blood for the purpose of determining the alcoholic content therein, provided that this limitation shall not apply to the taking of breath or urine specimens. No physician, registered nurse, or other qualified person or employer thereof shall incur any civil or criminal liability as a result of the medically proper obtaining of such blood specimens when requested in writing by a law enforcement officer;

(3) The person tested may have a physician or a qualified technician, chemist, registered nurse, or other qualified person of his own choosing administer a chemical test or tests in addition to any administered at the direction of a law enforcement officer. The justifiable failure or inability to obtain an additional test shall not preclude the admission of evidence relating to the test or tests taken at the direction of a law enforcement officer; and

(4) Upon the request of the person who shall submit to a chemical test or tests at the request of a law enforcement officer, full information concerning the test or tests shall be made available to him or his attorney. The arresting officer at the time of arrest shall advise the person arrested of his rights to a chemical test or tests according to this Code section.

(b) Except as provided in subsection (c) of this Code section, upon the trial of any civil or criminal action or proceeding arising out of acts alleged to have been committed by any person in violation of Code Section 40-6-391, the amount of alcohol in the person’s blood at the time alleged, as shown by chemical analysis of the person’s blood, urine, breath, or other bodily substance, may give rise to inferences as follows:

(1) If there was at that time an alcohol concentration of 0.05 grams or less, the trier of fact in its discretion may infer therefrom that the person was not under the influence of alcohol, as prohibited by paragraphs (1) and (4) of subsection (a) of Code Section 40-6-391; or

(2) If there was at that time an alcohol concentration in excess of 0.05 grams but less than 0.08 grams, such fact shall not give rise to any inference that the person was or was not under the influence of alcohol, as prohibited by paragraphs (1) and (4) of subsection (a) of Code Section 40-6-391, but such fact may be considered by the trier of fact with other competent evidence in determining whether the person was under the influence of alcohol, as prohibited by paragraphs (1) and (4) of subsection (a) of Code Section 40-6-391.

(c) (1) In any civil or criminal action or proceeding arising out of acts alleged to have been committed in violation of paragraph (5) of subsection (a) of Code Section 40-6-391, if there was at that time or within three hours after driving or being in actual physical control of a moving vehicle from alcohol consumed before such driving or being in actual physical control ended an alcohol concentration of 0.08 or more grams in the person’s blood, breath, or urine, the person shall be in violation of paragraph (5) of subsection (a) of Code Section 40-6-391.

(2) In any civil or criminal action or proceeding arising out of acts alleged to have been committed by any person in violation of subsection (i) of Code Section 40-6-391, if there was at that time or within three hours after driving or being in actual physical control of a moving vehicle from alcohol consumed before such driving or being in actual physical control ended an alcohol concentration of 0.04 grams or more in the person’s blood, breath, or urine, the person shall be in violation of subsection (i) of Code Section 40-6-391.

(3) In any civil or criminal action or proceeding arising out of acts alleged to have been committed by any person in violation of subsection (k) of Code Section 40-6-391, if there was at that time or within three hours after driving or being in actual physical control of a moving vehicle from alcohol consumed before such driving or being in actual physical control ended an alcohol concentration of 0.02 grams or more in the person’s blood, breath, or urine, the person shall be in violation of subsection (k) of Code Section 40-6-391.

(d) In any criminal trial, the refusal of the defendant to permit a chemical analysis to be made of his blood, breath, urine, or other bodily substance at the time of his arrest shall be admissible in evidence against him.

(e) (1) A certification by the office of the Secretary of State or by the Department of Public Health that a person who drew blood was a licensed or certified physician, physician assistant, registered nurse, practical nurse, medical technologist, medical laboratory technician, or phlebotomist at the time the blood was drawn;

(2) Testimony, under oath, of the blood drawer; or

(3) Testimony, under oath, of the blood drawer’s supervisor or medical records custodian that the blood drawer was properly trained and authorized to draw blood as an employee of the medical facility or employer

shall be admissible into evidence for the purpose of establishing that such person was qualified to draw blood as required by this Code section.

(f) 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, tested, 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.”

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 the pertinent requirements of paragraph (1) of subsection (a) of this Code section and subparagraph (g)(2)(F) of Code Section 40-5-67.1.

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Needless to say, a large part of the litigation in these cases for a very long time involved the certification and calibration papers on the machines used to test BAC, but the Code section above addressed a way to establish that.  When the State doesn’t have the papers available, for any reason, they still faced difficulty establishing their case.  However, the 1997 Court of Appeals case of Gidey v. State, 228 Ga.App. 250, 491 S.E.2d 406, rendered the standard a little looser, easing the burden the State faced to establish the reliability of the technology it used to establish how much alcohol was in a driver’s system.  In that case, the Court reaffirmed that “substantial statutory compliance [with OCGA § 40-6-392(a)(1)(A)] can be established by circumstantial evidence arising from the testimony of [the trained and certified individual] who operated the machine and performed the test.” (emphasis supplied).  The case in full is below:

Sidney L. Moore, Jr., Atlanta, for appellant.

Ralph T. Bowden, Jr., Solicitor, W. Cliff Howard, Joseph N. Walden III, Asst. Solicitors, for appellee.

        RUFFIN, Judge.

        Jacob Gidey appeals from his conviction for driving under the influence of alcohol, driving with unlawful alcohol concentration, and failure to maintain lane. For reasons which follow, we affirm.

        The record shows that DeKalb County police officer Steven Davis saw Gidey’s vehicle weaving on the interstate one morning at approximately 4:00 a.m. Officer Davis followed Gidey, noticed a continuing pattern of weaving, and eventually conducted a traffic stop. During the stop, Davis noticed that Gidey’s eyes were “red and watery” and detected a strong odor of alcohol on Gidey’s breath. At Davis’ request, Gidey exited the vehicle. Noting that Gidey appeared unsteady on his feet, Davis asked Gidey to complete several field sobriety tests. According to Davis, Gidey was unable to accurately recite the alphabet, exhibited clues evidencing alcohol impairment in the horizontal gaze nystagmus test, and could not successfully perform the walk and turn test. Davis further testified that in his opinion, Gidey was under the influence of alcohol to the extent he was a less safe driver.

        Davis arrested Gidey and transported him to the Dekalb County Police Station. At the station, intoximeter operator Gregory Waters tested Gidey’s breath twice on an Intoxilyzer 5000 machine. The first test showed Gidey’s alcohol level at .140, and the second test resulted in a .147 alcohol level.

        The jury found Gidey guilty of driving under the influence of alcohol, driving with unlawful alcohol concentration, and failure to maintain lane. Immediately after the trial, Gidey was sentenced to 12 months of confinement, with 30 days in custody and the remainder on probation, 40 hours of community service, a single fine of $1,000 on the two alcohol counts, and a $1,000 fine for failure to maintain lane. The trial court subsequently denied Gidey’s motions for new trial and for reduction of sentence.

  1. Gidey first argues that the trial court erred in admitting the results of the Intoxilyzer 5000 test because the State failed to meet the admissibility requirements of OCGA § 40-6-392(a)(1)(A). We disagree.

        Under OCGA § 40-6-392(a)(1)(A), a breath test is valid if, among other things, it is “performed according to methods approved by the Division of Forensic Sciences of the Georgia Bureau of Investigation on a machine which was operated with all its electronic and operating components prescribed by its manufacturer properly attached and in good working order….” Section 40-6-392(f) further provides that a properly prepared and executed inspection certificate for the breath-testing machine is admissible to satisfy this requirement.

        Gidey claims that the State failed to present an adequate inspection certificate pursuant to OCGA § 40-6-392(f) or otherwise establish that the electronic and operating components of the Intoxilyzer 5000 used in this case were in good working order. The record shows that the trial court excluded the inspection certificates offered by the State. The State’s other evidence, however, was sufficient to meet the requirements of OCGA § 40-6-392(a)(1)(A).

        Greg Waters, the individual who conducted the breath tests, testified that he was trained and certified to operate the Intoxilyzer 5000 when he tested Gidey. Waters’ permit to operate the machine was introduced into evidence. According to Waters, the methods used to perform Gidey’s tests were approved by the Division of Forensic Sciences and the GBI. He conducted the tests using an Intoxilyzer 5000 machine that he had used before and has used since Gidey’s tests. Waters further testified that the machine functioned properly when he tested Gidey and did not appear to have any pieces or components missing. The machine also appeared to be in good working order, and the diagnostic tests the machine conducted on itself before the breath analysis revealed no problems. Waters admitted that he does not know what is under the machine’s “hood,” but testified that “there [was nothing] irregular about the machine that night[.]”

        We find that the State sufficiently proved by competent circumstantial evidence that the breath tests were performed on a machine operated with all its electronic and operating components prescribed by its manufacturer properly attached and in good working order. Bazemore v. State, 225 Ga.App. 741, 743-745(2), 484 S.E.2d 673 (1997). As we have previously found, “substantial statutory compliance [with OCGA § 40-6-392(a)(1)(A) ] can be established by circumstantial evidence arising from the testimony of [the trained and certified individual] who operated the machine and performed the test.” Id. at 744, 484 S.E.2d 673. The trial court did not err in admitting the breath test results based upon Waters’ testimony. Id.

  1. Citing again to OCGA § 40-6-392(a)(1)(A), Gidey similarly claims that he was entitled to a directed verdict on the alcohol concentration charge because the State failed to show that the breath tests were performed on a machine operated with all its electronic and operating components properly attached and in good working order. As found in Division 1, however, the State presented competent circumstantial evidence sufficient to make the showing required by OCGA § 40-6-392(a)(1)(A). Gidey was not entitled to a directed verdict on this ground.
  1. Finally, Gidey argues that the sentence imposed by the trial court is disproportionate and unduly harsh. The trial court sentenced Gidey to 30 days in custody, 11 months on probation, 40 hours of community service, a single fine of $1,000 on the two alcohol counts, and a $1,000 fine for failure to maintain lane. We find no error.

        The record shows that this was Gidey’s first offense for driving under the influence of alcohol. The statutory guidelines for sentencing a first offender under OCGA § 40-6-391 provides generally for (1) a fine of not less than $300 or more than $1,000; (2) a period of imprisonment of not less than ten days or more than 12 months, which may be suspended, stayed or probated; and (3) not less than 40 hours of community service. OCGA § 40-6-391(c)(1). The maximum punishment for failure to maintain lane is a fine up to $1000 or confinement not to exceed 12 months, or both. OCGA § 17-10-3(a); OCGA § 40-6-1.

        Gidey’s sentence falls within the range of statutorily prescribed punishment for his offenses. He argues on appeal, however, that his sentence is unduly harsh in comparison with the sentence normally imposed upon first offenders who elect to plead nolo contendere 1 and that the trial court improperly punished him for exercising his right to trial by jury. This claim has no merit. We have recognized that a trial court does not engage in unconstitutional “vindictiveness” by imposing a harsher sentence following a jury trial than may have been imposed if the defendant had accepted a plea bargain. Allen v. State, 193 Ga.App. 670, 671-672, 388 S.E.2d 889 (1989). Rather, the trial court is “merely ‘following through’ on the inevitable and permissible ‘threat’ which is implicit in any plea bargain situation–that rejection of the plea bargain may diminish or destroy the very rationale for the imposition of a lenient sentence.” Id. at 671, 388 S.E.2d 889.

        Gidey’s sentence is not ” ‘grossly out of proportion to the severity of the crime.’ [Cit.]” Haygood v. State, 225 Ga.App. 81, 83(2), 483 S.E.2d 302 (1997). Accordingly, we find no error in the trial court’s sentence.

        Judgment affirmed.

        BIRDSONG, P.J., and ELDRIDGE, J., concur.

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1 The sentencing guidelines established in OCGA § 40-6-391(c)(1) govern penalties imposed on all DUI first offenders, including those who plead nolo contendere. OCGA § 40-6-391.1.

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