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Bagwell v. State3/28/2001
A jury convicted Robert Bagwell of driving under the influence of alcohol ("DUI") to the extent it was less safe for him to drive, and driving while his alcohol concentration was more than 0.10 grams (a "per se" violation). On appeal, Bagwell argues that his two prior DUIs and his breath test results were erroneously admitted in evidence. He also challenges the denial of his motion for directed verdict on the per se charge. We affirm.
Sergeant Craig Cannon of the City of Conyers Police Department testified that on March 13, 1998, he observed Bagwell's vehicle exit a parking lot, cross one lane of traffic, and pull in front of a car in the next lane, nearly causing a wreck. When Cannon stopped Bagwell, the officer noticed a strong odor of alcohol emanating from his person. Bagwell stated that he had consumed one beer. Cannon asked him to perform field sobriety tests, including the one-leg stand and the walk-and-turn test. Bagwell's performance indicated that he was impaired, so Cannon administered the alco-sensor test.
Bagwell tested positive for alcohol. Cannon then placed him under arrest, handcuffed him, put him in the back of his patrol car, and read him the implied consent notice. Bagwell agreed to take a state-administered breath test. Cannon secured Bagwell's vehicle, transported him to jail, and presented him to Deputy Dexter Harris, who performed the test at 11:03 p.m. The results were .108. A second test performed three minutes later measured Bagwell's blood alcohol concentration as .107.
1. Bagwell argues that the trial court should have excluded the results of his Intoxilyzer 5000 test because he was not observed continuously for 20 minutes before the test was administered to ensure that he did not burp or belch, which would have contaminated the breath sample by leaving residual alcohol in his mouth.
A state-administered breath test is admissible in evidence if the state proves that it was conducted in accordance with "methods approved by the Division of Forensic Sciences (DFS) of the Georgia Bureau of Investigation." The training manual DFS issued in 1997 concerning the Intoxilyzer, which Bagwell introduced into evidence during the hearing on his motion in limine, requires those who operate the machine to "adhere to proper testing methods and procedures." Those procedures state:
All breath tests will be preceded by a twenty (20) minute waiting period. During this waiting period the subject must be in a controlled environment and be prohibited from consuming any material that contains or might contain alcohol. Should the subject vomit during the waiting period, this should be noted. Allow the subject to recover . . . and restart the twenty minute waiting period. The twenty minute waiting period will be satisfied when the above conditions are met.
Even if the 20-minute observation requirement constitutes a "method approved" by the DFS, the state proved that the rule was satisfied in this case. Of the 20 minutes preceding the test, Bagwell spent ten minutes handcuffed in the back of the patrol car while Cannon secured the scene, and an additional ten minutes en route to the jail with Cannon. Clearly, during the initial ten minutes, Bagwell was in a controlled environment where he could not consume alcohol. There is no evidence that he regurgitated. That is all the procedure requires; it references no other oral emanations. "The failure to continuously watch [Bagwell] for 20 consecutive minutes prior to the breath test does not require exclusion of the test results." We find that the state substantially complied with the 20-minute rule. It follows that the trial court did not err in denying Bagwell's motion in limine and i
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