Channell v. State
| Decision Date | 19 September 1984 |
| Docket Number | No. 68711,68711 |
| Citation | 172 Ga.App. 156,322 S.E.2d 356 |
| Parties | CHANNELL v. The STATE. |
| Court | Georgia Court of Appeals |
Howard Tate Scott, Athens, for appellant.
Ken Stula, Sol., Kent Lawrence, Asst. Sol., for appellee.
On appeal from her conviction of driving under the influence of alcohol, the appellant contends that the trial court erred in allowing into evidence testimony to the effect that she had failed to pass an "alka-sensor" roadside sobriety test administered to her at the scene of her arrest.
The appellant was detained after her vehicle was observed weaving across the centerline of the roadway during the early morning hours of March 13, 1983. The arresting officer testified that he could smell a strong odor of alcoholic beverage on the appellant's person and breath, that she was unsteady on her feet and that her speech was slurred and hard to understand. The officer was also permitted to testify, over objection, that he administered a roadside sobriety test to the appellant, which she failed to pass. The officer testified on cross-examination that this was an "alka-sensor (sic) field sobriety test." It does not appear that any other type of blood-alcohol test was administered to the appellant.
The appellant's objection to the testimony regarding the "alka-sensor" test was based on the State's failure to show that the test had been approved by the Georgia Department of Public Safety. Although the State's attorney informed the court, in response to the objection, that "the Rules and Regulations of the Department of Public Safety, which I have a certified copy of, ... so designate it as the test that is mandated by the state for on-the-roadside sobriety tests," no such rules and regulations were introduced into evidence or otherwise made a part of the record.
Testifying in her own behalf, the appellant admitted that she had consumed a few beers on the night in question and that it was possible she had crossed over the centerline in the manner described by the officer. She maintained, however, that her erratic driving was due not to intoxication but to the fact that she was suffering from a painful uterus infection for which she had taken a pain medication. Held:
OCGA § 40-6-392(a)(1) provides that, to be admissible as evidence, the results of a blood-alcohol test "shall have been performed according to methods approved by the Division of Forensic Sciences of the Georgia Bureau of Investigation and by an individual possessing a valid permit issued by the Division of Forensic Sciences for this purpose." Pursuant to Rule 570-9-.06(3) of the Rules of the Department of Public Safety, as reported in the Official Compilation of the Rules and Regulations of the State of Georgia (1983 Revision), an initial alcohol screening test administered to a suspect at the scene of a D.U.I. investigation for the purpose of determining the existence of probable cause for an arrest, "shall be a breath test and will utilize a device of a design approved by the Director of the State Crime Laboratory." In the absence of proof of compliance with such regulations, it has been held that the results of a blood-alcohol test are inadmissible. See State v. Johnston, 160 Ga.App. 71, 72, 286 S.E.2d 47 (1981), aff'd 249 Ga. 413, 291 S.E.2d 543 (1982).
Because the required foundation was not laid in the case before us, we hold that the trial court erred in admitting the officer's testimony that the appellant "failed" the roadside sobriety test which he had administered to her. This court's decision in Hunter v. State, 143 Ga.App. 541, 543(5), 239 S.E.2d 212 (1977), is not authority for a contrary result. In the first place, the initial screening test at issue in that case was merely a "balloon" test designed to confirm the presence of alcohol in the driver's body systems rather than to test for sobriety. In the second place, it does not appear that any rules regarding the administration of screening tests had been promulgated by the Department of Public Safety at the time that decision was rendered. Finally, the admission of the screening test results in that case was merely cumulative of the results of an intoximeter test which had been administered to the defendant, showing his blood-alcohol content to be 0.16 percent.
Judgment reversed.
Appellant's two enumerations on appeal assign error to the trial court's admitting the testimony of the arresting officer as to the results of an initial alcohol screening test. The basis of these enumerations is appellant's contention that the breath-testing device utilized by the arresting officer is not one which has been approved by the Director of the Division of Forensic Sciences 1 and, thus, that the State failed to lay a proper foundation for the admission of the testimony complained of.
The testing device in question (an "alka-sensor") is, indeed, not one of those listed by the Department of Public Safety as approved for breath tests to determine the amount of alcohol in a person's blood. See Rules of the Department of Public Safety, Rule 570-9-.06(5). It is important to note, however, that the subject testing device was not utilized for that purpose. Rather, the test was administered at roadside where the officer had stopped appellant and was used by the officer, in conjunction with other observations, in making his determination of probable cause to arrest appellant for driving while intoxicated. Nevertheless, initial alcohol screening devices such as the one in this case must also be approved by the Director of the Division of Forensic Sciences. Rules of the Department of Public Safety, Rule 570-9-. 06(3). Under this circumstance, I am compelled to agree with the majority's conclusion that the absence of proof of compliance with such rule renders inadmissible the results of such a test. See State v. Johnston, 249 Ga. 413, 415, 291 S.E.2d 543 (1982).
I would further note that the jury in this case was not clearly informed...
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