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Davis v. State4/29/1999
urine, or other bodily substance test shall not affect the admissibility of the results of any prior samples. An adequate breath sample shall mean a breath sample sufficient to cause the breath-testing instrument to produce a printed alcohol concentration analysis." (Emphasis supplied.)
The trial court denied Davis' motion to exclude the results of the breath test by finding that the first two tests, which were outside the parameters, did not produce adequate breath samples. This ruling was erroneous. The statute plainly defines an adequate breath sample as "a breath sample sufficient to cause the breath-testing instrument to produce a printed alcohol concentration analysis." In this case it is undisputed that both the first and second tests administered to Davis produced printed alcohol concentration analyses. The statute also clearly provides that no more than two tests, consisting of two breath samples each, can be requested by the state. The state was thus without authority to conduct a third breath test on Davis and the trial court should have granted Davis' motion to exclude the results of this test. Davis' conviction for driving with an unlawful blood alcohol concentration pursuant to OCGA § 40-6-391 (k) must therefore be reversed.
2. Based on our holding in Division 1, it is unnecessary for us to consider Davis' remaining enumeration of error.
Judgment reversed. Smith and Eldridge, JJ., concur.
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