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Dougherty v. State2/12/2003
A jury found Edward Dougherty guilty of driving under the influence of alcohol. Dougherty appeals, arguing that the trial court should have suppressed the results of his Intoxilyzer 5000 breath test. He also asks us to remand this case to the trial court for a hearing on alleged illegalities in the jury's composition. For reasons that follow, we affirm.
1. In three enumerations of error, Dougherty argues that the trial court erred in refusing to suppress evidence of his breath test. We find no error.
(a) First, Dougherty claims that the test results were inadmissible because the police lacked probable cause to arrest him. In reviewing the trial court's denial of his motion to suppress, "we must construe the evidence most favorably to uphold the findings and judgment of the trial court, and that court's findings as to disputed facts and credibility must be adopted unless clearly erroneous."
Viewed in this light, the record shows that, on April 27, 2000, Officer Scott Schunk saw Dougherty driving at a high rate of speed on Highway 316. Schunk paced Dougherty's vehicle at 80 miles per hour in a 55-mile-per-hour speed zone and at over 85 miles per hour in a 65-mile-per-hour zone. He then stopped Dougherty for speeding.
During the traffic stop, Schunk noticed that Dougherty's eyes were bloodshot and watery, his face was flushed, his speech was slurred, and his breath smelled like alcohol. Schunk asked Dougherty to get out of his vehicle, and when Dougherty complied, Schunk observed that he was "very unsteady on his feet." At that point, Dougherty admitted that he had consumed four beers.
Schunk administered several field sobriety tests to Dougherty. He first instructed Dougherty to recite the alphabet. Dougherty completed the task, but did so slowly. Schunk also gave Dougherty the horizontal-gaze-nystagmus test, and Dougherty exhibited all six "clues." Finally, Dougherty blew into an Alco-sensor, which registered positive for alcohol. Based on his observations of Dougherty, as well as Dougherty's performance on the field tests, Schunk arrested him for driving under the influence to the extent that he was less safe to drive. After the arrest, Schunk tested Dougherty's breath for alcohol using the Intoxilyzer 5000. Two breath samples produced blood alcohol levels of .124 and .132.
"The test of probable cause requires merely a probability - less than a certainty but more than a mere suspicion or possibility." Given Dougherty's physical appearance and demeanor, his field test performance, and the Alco-sensor reading, we agree with the trial court that probable cause existed for his arrest. As we have previously held, an officer's observation that a motorist has "bloodshot, watery eyes and exude an odor of alcohol sufficient to show probable cause to arrest him for driving under the influence ." Accordingly, the trial court did not err in denying Dougherty's motion to suppress on this ground.
(b) Dougherty further claims that the trial court should have suppressed the breath test because the State failed to prove that Schunk's Intoxilyzer 5000 permit "was in an approved form." This argument also lacks merit.
A breath test is admissible under OCGA § 40-6-392 if, among other requirements, it is "performed . . . by an individual possessing a valid permit issued by the Division of Forensic Sciences [of the Georgia Bureau of Investigation] for this purpose." At the suppression hearing, Schunk testified that he received a permit to operate the Intoxilyzer 5000 from the Division of Forensic Sciences ("DFS") following a training course. The State also tendered a copy of Schunk's permit, which was issued on December 13,
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