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State v. Bowen6/4/2001
ting of evidence adopted by shall not be subject to the provisions of [the APA]. OCGA § 35-3-155.
Thus, the APA is "inapplicable to the methods of evidence-testing adopted by . [Cit.]" Love v. State, 271 Ga. 398, 399 (1) (517 SE2d 53) (1999). See also Price v. State, 269 Ga. 222, 225 (4) (498 SE2d 262) (1998); Helmeci v. State, 230 Ga. App. 866, 867-868 (1) (498 SE2d 326) (1998). The question is, therefore, whether this Court should extend the exemption from the APA set forth in OCGA § 35-3- 155 beyond the methods of evidence-testing so that it will apply to the issuance of operator permits as well.
The Court of Appeals properly recognized that "`exclusions from the (APA) should be as few as possible and should not occur except for cause.'" Department of Ed. v. Kitchens, 193 Ga. App. 229, 230 (2) (387 SE2d 579) (1989). " n construing a statute so as to give effect to the legislative intent, a mere segment of the statute should not be lifted out of context and construed without consideration of all the other parts of the statute." Jordan v. State, 223 Ga. App. 176, 180 (2) (477 SE2d 583) (1996). Thus, we cannot isolate portions of the language in OCGA § 35-3-155 in order to make the exemption cover the licensing of test operators. When read as a whole, the language of the statute describes the course of preparation for and performance of actual tests on evidence. Giving the statutory language its requisite common and ordinary meaning, I can only conclude that the requirements for licensing of individuals to perform forensic tests are not incorporated within the exemption from the APA. As the Court of Appeals explained, the BUI statute itself recognizes the distinction between methods for the performance of chemical analysis and the ascertainment of the qualifications and competence of, and the issuance of permits to, those individuals who conduct the analyses. OCGA § 52-7-12 (c) (1). See also OCGA § 40-6-392 (a) (1) (A) (the DUI counterpart). Indeed, the Forensic Sciences Act separately requires DFS to "provide for the training and certification of operators of breath test equipment." OCGA § 35-3-154 (3). Even the GBI makes the identical distinction by means of separate rules for operator permits which it published for DUI prosecutions and has, since the trial court's decision herein, extended to BUI prosecutions. Ga. Admin. Code Rules 92-3-.01 through 92-3-.05. Compare Rule 92-3-.06. By disregarding the distinction between testing methods and licensing requirements and extending the exception to the APA set forth in OCGA § 35-3-155 beyond the usual meaning of the words thereof, the majority has unacceptably given that statute a forced and strained construction. Warren v. Warren, 249 Ga. 130, 131-132 (287 SE2d 524) (1982).
I am authorized to state that Justice Sears and Justice Hines join in this dissent.
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