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Johnson v. State6/12/2003
Carlre Demetric Johnson was charged with driving under the influence of alcohol to the extent that it is less safe to drive, driving under the influence of alcohol with an unlawful blood alcohol concentration of 0.08 grams or more, and certain speeding offenses. He was convicted on the less safe DUI charge. He appeals, contending that the trial court erred in overruling his objection to a question the prosecuting attorney asked a defense expert witness, in admitting the results of an Intoxilyzer breath test, and in instructing the jury on an inference that could be drawn from his blood alcohol concentration. Finding merit in the latter two contentions, we reverse.
The state's evidence showed that on July 27, 2001, City of Snellville police officer Signe Hall was on routine patrol when she stopped a car for speeding. Johnson was the driver, and there were two passengers. Upon speaking to Johnson, Hall noticed that his eyes were bloodshot and watery, and that a very strong odor of alcohol emanated from the vehicle. As a result, she asked him to step out of the car. Upon doing so, he began to sway and admitted that he had consumed two drinks containing alcohol within the prior 45 minutes. At Hall's request, Johnson submitted to a series of field sobriety evaluations which he performed unsatisfactorily. As a result, Hall asked Johnson to breathe into an alco-sensor, which produced a positive result for the presence of alcohol.
Hall then arrested Johnson for DUI. Under Georgia's implied consent law, Hall informed Johnson that Georgia law required him to submit to state-administered chemical tests of his blood, breath, urine, or other bodily substances for the purpose of determining whether he was under the influence of alcohol or drugs and that, after first submitting to the required state test, he would be entitled to additional chemical tests at his own expense and from qualified personnel of his own choosing. When Hall then asked whether Johnson would submit to a state- administered breath test (in addition to the alco-sensor), he responded, "I'll take a urine test." Hall advised Johnson that she was asking him to submit to a breath test, and that, after submitting to the breath test, he could take whatever test he wanted. Hall then asked Johnson whether he would submit to the state-administered breath test, and he responded in the affirmative. While on the scene, Johnson later asked Hall, "When can I take my chemical test?" Hall responded that he would be taken to the jail for his test. Hall later transported Johnson to police headquarters, where an Intoxilyzer 5000 test was administered. The test showed that Johnson had a blood alcohol concentration of 0.081 grams. After arriving at headquarters, Johnson did not request an independent test and none was performed.
David Fries testified for the defense as an expert witness. Fries was a retired law enforcement officer from Florida. He had been responsible for inspection and maintenance of Florida's Intoxilyzer 5000 machines. He testified that, in his opinion, the acceptable deviation or margin of error for the Intoxilyzer 5000 is 0.02 grams, even though the manufacturer of the Intoxilyzer guarantees its accuracy to a plus or minus 0.003 blood alcohol concentration, and Georgia law enforcement officers are trained that the margin of error is 0.01. On cross- examination, he testified that Florida's legal limit had changed from 0.10 to 0.08 before his retirement and that, after the change, he had arrested people whose blood alcohol concentration registered 0.08 on the Intoxilyzer 5000. When the prosecutor asked whether Fries would ever charge a person with DUI when his or her blood alcohol level was 0.08 or higher, the defense objected. A
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