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State v. Bowen6/4/2001
Reed Stephen Bowen was charged with operating a boat while having an alcohol concentration of 0.10 or more grams (BUI), in violation of OCGA § 52-5-12 (a) (4). The trial court granted Bowen's motion to suppress the results of a breath test on the ground that the Department of Natural Resources ranger who administered the test did not possess a valid permit as required under OCGA § 52-7-12 (c) (1). The ruling was predicated on the failure of the Forensic Sciences Division of the Georgia Bureau of Investigation (the division) to publish its rules for granting permits for the administration of breath, blood and urine tests under the BUI statutes, which the trial court concluded was required under OCGA § 50-13-3 (b) of the Administrative Procedures Act (APA). The Court of Appeals affirmed. State v. Bowen, 245 Ga. App. 159 (537 SE2d 417) (2000). We granted the State's petition for writ of certiorari and reverse, holding that the division is exempted under OCGA § 35-3-155 from the publishing requirement of the APA.
OCGA § 50-13-3 (b) of the APA requires that any "rule, order, or decision" of an agency of the state be "published or made available for public inspection"; and in the absence of such publication, that rule, order, or decision is rendered invalid and may not be invoked by the agency. However,
uring its 1997 legislative session, the Georgia General Assembly passed the Forensics Sciences Act, [OCGA § 35-3-150 et seq.], which made the APA inapplicable to the methods of evidence-testing adopted by the GBI's Division of Forensic Sciences. OCGA § 35-3-155. Love v. State, 271 Ga. 398, 399 (1) (517 SE2d 53) (1999).
The exemption contained in OCGA § 35-3-155 provides:
Unless otherwise specifically provided by law, technical, scientific, and similar processes, procedures, guidelines, standards, and methods for the collection, preservation, or testing of evidence adopted by the division shall not be subject to the provisions of Chapter 13 of Title 50, the "Georgia Administrative Procedure Act."
In deciding that the issuance of operator permits do not fall within the OCGA § 35-3-155 exception, the trial court looked to OCGA § 52-7-12 (c) (1), a portion of the BUI statute which regulates the methodology of chemical analysis. OCGA § 52-7-12 (c) (1) provides:
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 and by an individual possessing a valid permit issued by the Division of Forensic Sciences for this purpose. The Division of Forensic Sciences . . . is authorized to approve satisfactory techniques or methods to ascertain the qualifications and competence of individuals to conduct analyses and to issue permits, which shall be subject to termination or revocation at the discretion of the Division of Forensic Sciences.
The trial court concluded that while the first sentence of that Code section is exempted from APA requirements, the second sentence is not. A majority of the Court of Appeals affirmed, creating a distinction between "technical . . . method for collecting, preserving, or testing evidence" in the first sentence, and "permitting requirements for test operators" in the second sentence. State v. Bowen, supra at 160. To support that interpretation, the Court of Appeals relied on the fact that similar permitting requirements under the DUI statute are published by the GBI; and it applied the general rule that exclusions from the APA must not occur except for cause. See Department of Ed. v. Kitchens, 193 Ga. App. 2
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