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Scara v. State1/15/2003
Following a bench trial, Eric Bryant Scara appeals his convictions of driving under the influence of alcohol to the extent that he was a less safe driver (OCGA § 40-6-391 (a) (1)) and driving with an unlawful alcohol concentration (OCGA § 40-6-391 (a) (5)), contending that the results of his breath test should have been excluded because there was no proof it was performed in accordance with approved methods as required by OCGA § 40-6-392 (a) (1) (A). For the reasons set forth below, we affirm.
Scara's motion in limine sought to exclude evidence of results of the Intoxilyzer 5000 test on the grounds that the State failed to lay the foundation required by OCGA § 40-6-392 (a) (1) (A), specifically by failing to prove the test itself was conducted in compliance with methods approved by the Division of Forensic Services (DFS). Scara argued that because the State did not introduce evidence of the specific methods approved, the State could not meet its burden of proving compliance with them. It is from the denial of that motion that Scara appeals. The admission of evidence rests within the sound discretion of the trial court and will not be disturbed absent its abuse. Gaston v. State.
On June 8, 2001, Officer Brandon Wilson arrested Scara for DUI "less safe driver." Wilson read Scara his implied consent warning immediately after arresting him, and shortly after that he administered the Intoxilyzer 5000 breath test, on which Scara registered .125. Based on this result, Scara was subsequently charged with DUI under OCGA § 40-6-391 (a) (5).
At the motion hearing, Wilson testified as follows:
[STATE]: Were the methods that you used to perform the Defendant's tests approved by the Division of Forensic Sciences of Georgia Bureau of Investigation?
[DEFENSE]: Objection, inadequate foundation. There's been no evidence submitted as to what those methods are, Your Honor.
[COURT]: All right. I'll overrule your objection. Go ahead.
[WILSON]: Yes, sir.
Wilson repeated the above testimony at trial and further testified that he was trained and certified to operate the Intoxilyzer 5000 on the date he administered the test to Scara. Neither the state solicitor nor Scara's attorney questioned Wilson in any detail about the methods or how Wilson complied with them. At both the hearing and at trial, Wilson testified that he had used that particular Intoxilyzer 5000 machine both before and after the test at issue, that it appeared to function properly, had no pieces or components missing, and passed its own diagnostic test before he used it on Scara. The print-out from Scara's breath test was also entered into evidence at trial, and at the motion hearing the parties stipulated to the admissibility of the machine's certification from the Georgia Bureau of Investigation.
1. Although the evidence presented by the State is somewhat skeletal, it is sufficient to show compliance with OCGA § 40-6-392 (a) (1) (A) and the methods and rules approved and published by the DFS pursuant to that statute. The trial court did not err in admitting the results of the breath test.
Before the State can introduce the results of a chemical test, including a breath test, to prove a violation of OCGA § 40-6-391 (a) (5), it has the burden of "demonstrating compliance with the statutory, foundational requirements" of OCGA § 40-6-392. Peek v. State, citing Munda v. State. OCGA § 40-6-392 (a) (1) (A) provides in part:
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
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