Brown v. State

• Decision Date: 02 June 1997
• Docket Number: No. S97A0464,S97A0464
• Citation: 268 Ga. 76,485 S.E.2d 486
• Parties: , 97 FCDR 1925 BROWN v. The STATE.
• Court: Georgia Supreme Court

Page 486

485 S.E.2d 486

268 Ga. 76, 97 FCDR 1925

BROWN v. The STATE.

No. S97A0464.

Supreme Court of Georgia.

June 2, 1997.

David Edward Clark and Jessica R. Towne, Clark & Towne, Lawrenceville, for Brown.

Gerald N. Blaney, Jr., Solicitor, William F. Bryant, Asst. Solicitor, Gwinnett Justice & Administration Center; Richard E. Thomas, Chief Asst. Solicitor, and Allison L. Thatcher, Gwinnett County Solicitors Office, Lawrenceville, for State.

Carol Awtrey Callaway, Senior Asst. Atty. Gen., Dept. of Law, Atlanta, and Kenneth W. Mauldin, Solicitor, Athens, Amicus Appellee.

HUNSTEIN, Justice.

Jay Michael Brown was accused of driving under the influence of alcohol, driving with an unlawful blood alcohol, and other misdemeanors. He filed a motion to suppress the results of his State-administered Intoxilyzer 5000 breath test, alleging, inter alia, that the testing device was not operated with all of its electronic and operating components properly attached and in good working order, as required by OCGA § 40-6-392(a). At the pretrial hearing on the motion to suppress, the State offered as evidence two certificates of inspection regarding the breath-testing device used on Brown, which were prepared pursuant to OCGA § 40-6-392(f). A State witness testified that the certificates were maintained in the normal and regular course of business at the police department. Brown's objection to the admission of these certificates on confrontation grounds was denied and we granted Brown's application for interlocutory appeal to consider whether OCGA § 40-6-392(f) violates a defendant's right to confront the witnesses against him, as guaranteed by the Sixth Amendment to the U.S. Constitution and Art. I, Sec. I, Par. XIV of the Georgia Constitution of 1983. Finding that the statute does not offend a defendant's right of confrontation because the certificates were admissible under the firmly rooted hearsay exception for business records, we affirm.

OCGA § 40-6-392(f) authorizes as self-authenticating the admission of inspection certificates on breath-testing devices. The statute provides:

Each time an approved breath-testing instrument is inspected, the inspector shall prepare a certificate which shall be signed under oath by the inspector and which shall include the following language:

"This breath-testing instrument (serial no. ) was thoroughly inspected, tested, and standardized by the undersigned on (date ) and all of its electronic and operating components prescribed by its manufacturer are properly attached and are in good working order."

When properly prepared and executed, as prescribed in this subsection, the certificate shall, notwithstanding any other provision of law, be self-authenticating, shall be admissible in any court of law, and shall satisfy the pertinent requirements of [OCGA § 40-6-392(a)(1) ] and [OCGA § 40-5-67.1(g)(2)(F) ].

Brown argues that OCGA § 40-6-392(f) suffers the same constitutional infirmity that led this Court in Miller v. State, 266 Ga. 850, 472 S.E.2d 74 (1996) to hold that OCGA § 35-3-16 violated a defendant's right of confrontation. OCGA § 35-3-16 authorized the admission, in lieu of trial testimony, of a sworn certified copy of the drug analysis from the employee of the GBI Division of Forensic Sciences who analyzed the substance. Acknowledging that the certified copy constituted hearsay evidence, this Court recognized in Miller that the confrontation clause does not necessarily prohibit the admission of hearsay statements against a criminal defendant but rather that such evidence can be used to support a criminal conviction where the State has carried its burden of proving that the hearsay evidence bore sufficient indicia of reliability to withstand scrutiny under the confrontation clause. Id. at 853, 472 S.E.2d 74.

Reliability can be inferred where the evidence falls within a firmly rooted hearsay exception since such an exception "satisfies the constitutional requirement of reliability because of the ... judicial and legislative experience in assessing the trustworthiness of certain types of out-of-court statements." [Cit.]

Id. However, we concluded in Miller that the certified copy did not fall within the business record exception to the hearsay rule, seeOCGA § 24-3-14, because it "contains the conclusion of a third party not before the court. [Cit.]" Miller, supra at 854(3), 472 S.E.2d 74. ¹ In this regard, the facts in Miller reflect the certified copy authorized by OCGA § 35-3-16 was used in lieu of a lab technician's testimony regarding the weighing of the seized substance with electronic balances and/or mechanical scales, the use of microscopy and gas chromatography/mass spectrometry testing, and the technician's conclusion that the substance tested positive for marijuana.

Although Brown argues the certificate authorized by OCGA § 40-6-392(a) contains the "conclusion" of a third party not before the court and thus fails to qualify under the business record exception to the hearsay rule, we find the instant case comparable to and controlled by our holding in Wiggins v State, 249 Ga. 302, 290 S.E.2d 427 (1982), rather than Miller, supra. In Wiggins this Court addressed a hearsay challenge to the admission of certification of a radar speed detection device, proof of which is required in order to render admissible evidence of speed gained by use of the speed detection device. Id. at 304-305(2)(a), 290 S.E.2d 427. See OCGA § 40-14-4. We recognized that the "primary purpose [of a radar device certificate] is to serve as a memorandum of the accuracy of the equipment" before it is placed in service, id. at 306(2)(c), 290 S.E.2d 427, and concluded that although it was "obvious" records containing radar device certificates were kept to be used in speeding cases in which radar speed determinations were to be introduced in evidence, "we nonetheless hold that they are records 'made in the regular course of ... business' within the meaning of [OCGA § 24-3-14] because the regular course of the 'business' of the Department of Public Safety includes the keeping of records of departmental compliance with [OCGA § 40-14-1] et seq. [Cit.]" Id. We found that "[i]n the usual circumstance, the business record rule should be an adequate vehicle for the introduction into evidence of those portions of the state's proof which are not within the personal knowledge of the arresting officer." Id. at 306(3), 290 S.E.2d 427.

Unlike the situation in Miller, supra, where the certification was merely to obviate the need for a lab technician to testify regarding testing conducted at the lab, breath-testing device certificates share with radar device certificates the primary purpose of serving as a memorandum of the accuracy of the equipment. The Legislature, by enacting OCGA § 40-6-392, "has by statute created procedural safeguards to minimize the possibility of erroneous test results" in DUI cases. Lattarulo v. State, 261 Ga. 124, 126(3), 401 S.E.2d 516 (1991). Accord Fisher v. State, 177 Ga.App. 465(2), 339 S.E.2d 744 (1986) (OCGA § 40-6-392 reflects the Legislature's concern with providing accurate evidence as to amount of alcohol or drug in a person's blood at pertinent time). Hence, whether the device measures alcohol concentration level or rates of speed, "[t]he purpose of testing and certifying the device before it is placed in service and annually thereafter is to ensure the initial and continuing accuracy of the device." Nairon v. State, 215 Ga.App. 76, 78(2), 449 S.E.2d 634 (1994). Further, unlike Miller, wherein the certificate represented the findings of the lab technician who performed the analysis which led to the conclusion regarding the nature of the tested material, i.e., whether or not it was an illegal substance, in breath-testing device cases it is the device that performs the analysis which determines a person's alcohol concentration level. As noted by one foreign authority, "in reality the 'witness' against the defendant, the source of the crucial and incriminating evidence, is not the analyst, but the machine itself." State v. Smith, 312 N.C. 361, 323 S.E.2d 316, 323 (1984). The certificate in issue here addresses only the performance of the breath-testing device in calibration tests conducted to ensure its accuracy when it is subsequently used to analyze a person's alcohol concentration level and in no manner represents or substitutes for the analysis itself.

Furthermore, we disagree with Brown's argument that the certification in issue here contains "conclusions" of the nature that would bar its admission under the business record exception. The certificate language that the device was "thoroughly" tested merely reflects that all required calibration tests were conducted, and thus comments upon the factual extent of the testing as opposed to the opinionative quality of the testing performed. As to the statement that the device is "in good working order," this does not constitute an opinion regarding how "good" the device is, but rather constitutes a factual statement that the device passed the calibration tests conducted on it and...