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Love v. State6/1/1999
July 30, 1999 Substitute opinion - new division 3.
No substantive change.
Appellant Everette Bryan Love was stopped on I-85 in Gwinnett County for speeding at 11:30 p.m. on May 31, 1996. After approaching appellant's stopped vehicle, the officer arrested appellant for driving under the influence based on the odor of marijuana emanating from appellant's car. Samples of appellant's blood and urine were taken and sent to the Crime Lab for analysis which revealed the presence of marijuana metabolites in appellant's blood and urine. Appellant was charged with driving under the influence of drugs to the extent he was a less safe driver (OCGA § 40-6-391 (a)(2)), and driving with marijuana in his blood or urine. OCGA § 40-6-391(a)(6). The trial court denied appellant's motion to quash which was based, in part, on the assertion that OCGA § 40-6-391 (a)(6) was unconstitutional. Appellant was convicted of driving with unlawful drugs present in his blood or urine, but the jury was unable to reach a verdict on the charge that appellant was driving under the influence of drugs to the extent it made him a less safe driver. On appeal, appellant renews his attacks on the constitutionality of the statute and sees error in the trial court's denial of his motion to suppress the result of the tests on his blood and urine specimens.
1. Appellant contends the trial court erroneously failed to suppress the results of the tests conducted on his blood and urine because the testing methods had not been approved under the Administrative Procedure Act (APA), OCGA §§ 50-13-1 et seq., and therefore were not "performed according to methods approved by the Division of Forensic Sciences of the Georgia Bureau of Investigation," as required by OCGA § 40-6-392 (a)(1)(A). During its 1997 legislative session, the Georgia General Assembly passed the Forensic Sciences Act, which made the APA inapplicable to the methods of evidence-testing methods adopted by the GBI's Division of Forensic Sciences. OCGA § 35-3-155. Appellant asserts that the 1997 legislation cannot be applied to his 1996 test results, and asserts that we should overrule the appellate holding in Helmici v. State, 230 Ga. App. 866 (498 SE2d 326) (1998), which authorized the retroactive application of the 1997 legislation.
While OCGA § 35-3-155 was passed after the commission of the offense for which appellant was tried, it did not inflict a greater punishment than was permitted by the law in effect at the time of the offense; it did not make criminal an act which was innocent when done; it did not change the quality or degree of appellant's offense; it did not require less or different evidence than required at the time of the offense; and it did not deprive appellant of any substantial right or immunity he possessed at the time of the offense. See Todd v. State, 228 Ga. 746, 751 - 752 (187 SE2d 831) (1972). The statute did "`nothing more than admit evidence of a particular kind in a criminal case upon an issue of fact which was not admissible under the rules of evidence as enforced by judicial decisions at the time the offense was committed.' [Cit.]." Id., at 751. Accordingly, OCGA § 33-5-155 does not violate ex post facto constitutional provisions and is applicable to the case at bar. Price v. State, 269 Ga. 222 (4) (498 SE2d 262) (1998). See also State v. Martin, 266 Ga. 244 (3) (466 SE2d 216) (1996). The failure to suppress the test results was not error.
2. Appellant contends that OCGA § 40-6-391 (a)(6) violates the Equal Protection Clause of both the U.S. and Georgia Constitutions because the statute singles out for punishment unimpaired drivers with low levels of marijuana metabolites in their body fluids, despite the fact
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