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Madden v. State10/25/2001
Following a bench trial, John Madden was found guilty of driving under the influence with a blood/alcohol concentration of 0.08 or more and violating the restrictions of his limited driving permit. On appeal, Madden asserts that the evidence was insufficient to support his DUI conviction because the State failed to properly authenticate the inspection certificate for the breath-testing device used to determine his blood/alcohol concentration. In two enumerations of error, Madden also contends that his convictions should be reversed because the conduct occurred on a private drive rather than a public thoroughfare. For reasons that follow, we affirm.
Viewed in a light most favorable to the verdict, the evidence shows that on April 8, 2000, deputies from the Elbert County Sheriff's Department received word that a driver was trying to run over a pedestrian at the Country Manor Mobile Home Park. The deputies arrived at the mobile home park where residents identified Madden, who was still behind the wheel of a truck, as the driver. Deputy Brandon Dye stopped the truck and asked to see Madden's driver's license and insurance card. Madden produced a limited driving permit, which showed he was only permitted to drive to and from work and school.
Dye noticed a strong odor of alcohol coming from Madden, and Dye asked him to take a field breath test. When Madden tested positive for the presence of alcohol, he was arrested, read his implied consent rights, and taken to the police department to have his blood/alcohol level tested using the Intoxilyzer 5000. The machine indicated that Madden had a blood/alcohol level of 0.119, which is above the legal limit.
1. In his first enumeration of error, Madden contends that the trial court erred in considering the results of the breath test. According to Madden, the introduction of the Intoxilyzer 5000 inspection certificate in lieu of live testimony violated his constitutional right to confront witnesses against him. Madden also asserts that the inspection certificate was inadmissible because the State failed to lay a proper foundation for its admission.
Pursuant to OCGA § 40-6-392 (f), a certificate of inspection for approved breath-testing instruments, " hen properly prepared and executed, . . . shall, notwithstanding any other provision of law, be self-authenticating, shall be admissible in any court of law." Madden argues that this statutory provision violates his constitutional right of confrontation. We note, however, that the Supreme Court addressed this exact issue in Brown v. State and decided otherwise. Accordingly, this alleged error presents no basis for reversal.
Madden also contends that the trial court erred in admitting the inspection certificate because the State failed to lay a foundation for its admission as a business record. We note, however, that Madden did not object to the admission of the certificate on this basis at the time it was admitted, and " he failure to make a timely and specific objection is treated as a waiver." It follows that this alleged error presents no basis for reversal.
2. In two enumerations of error, Madden asserts that he was improperly convicted because the driving infractions occurred on private rather than public property.
With respect to Madden's DUI conviction, his assertion is meritless. OCGA § 40-6-391 (a) (5) provides that it is unlawful for any person to "drive or be in actual physical control of any moving vehicle" with a blood/alcohol level of 0.08 or more. The statute draws no distinction between driving on public roads versus private thoroughfares. Moreover, in Cook v. State, our Supreme Court concluded that "there is no immunity
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