Gidey v. State, A97A1285
| Decision Date | 08 August 1997 |
| Docket Number | No. A97A1285,A97A1285 |
| Citation | 491 S.E.2d 406,228 Ga.App. 250 |
| Parties | , 97 FCDR 3125 GIDEY v. The STATE. |
| Court | Georgia Court of Appeals |
Sidney L. Moore, Jr., Atlanta, for appellant.
Ralph T. Bowden, Jr., Solicitor, W. Cliff Howard, Joseph N. Walden III, Asst. Solicitors, for appellee.
Jacob Gidey appeals from his conviction for driving under the influence of alcohol, driving with unlawful alcohol concentration, and failure to maintain lane. For reasons which follow, we affirm.
The record shows that DeKalb County police officer Steven Davis saw Gidey's vehicle weaving on the interstate one morning at approximately 4:00 a.m. Officer Davis followed Gidey, noticed a continuing pattern of weaving, and eventually conducted a traffic stop. During the stop, Davis noticed that Gidey's eyes were "red and watery" and detected a strong odor of alcohol on Gidey's breath. At Davis' request, Gidey exited the vehicle. Noting that Gidey appeared unsteady on his feet, Davis asked Gidey to complete several field sobriety tests. According to Davis, Gidey was unable to accurately recite the alphabet, exhibited clues evidencing alcohol impairment in the horizontal gaze nystagmus test, and could not successfully perform the walk and turn test. Davis further testified that in his opinion, Gidey was under the influence of alcohol to the extent he was a less safe driver.
Davis arrested Gidey and transported him to the Dekalb County Police Station. At the station, intoximeter operator Gregory Waters tested Gidey's breath twice on an Intoxilyzer 5000 machine. The first test showed Gidey's alcohol level at .140, and the second test resulted in a .147 alcohol level.
The jury found Gidey guilty of driving under the influence of alcohol, driving with unlawful alcohol concentration, and failure to maintain lane. Immediately after the trial, Gidey was sentenced to 12 months of confinement, with 30 days in custody and the remainder on probation, 40 hours of community service, a single fine of $1,000 on the two alcohol counts, and a $1,000 fine for failure to maintain lane. The trial court subsequently denied Gidey's motions for new trial and for reduction of sentence.
1. Gidey first argues that the trial court erred in admitting the results of the Intoxilyzer 5000 test because the State failed to meet the admissibility requirements of OCGA § 40-6-392(a)(1)(A). We disagree.
Under OCGA § 40-6-392(a)(1)(A), a breath test is valid if, among other things, it is "performed according to methods approved by the Division of Forensic Sciences of the Georgia Bureau of Investigation on a machine which was operated with all its electronic and operating components prescribed by its manufacturer properly attached and in good working order...." Section 40-6-392(f) further provides that a properly prepared and executed inspection certificate for the breath-testing machine is admissible to satisfy this requirement.
Gidey claims that the State failed to present an adequate inspection certificate pursuant to OCGA § 40-6-392(f) or otherwise establish that the electronic and operating components of the Intoxilyzer 5000 used in this case were in good working order. The record shows that the trial court excluded the inspection certificates offered by the State. The State's other evidence, however, was sufficient to meet the requirements of OCGA § 40-6-392(a)(1)(A).
Greg Waters, the individual who conducted the breath tests, testified that he was trained and certified to operate the Intoxilyzer 5000 when he tested Gidey. Waters' permit to operate the machine was introduced into evidence. According to Waters, the methods used to perform Gidey's tests were approved by the Division of Forensic Sciences and the GBI. He conducted the tests using an Intoxilyzer 5000 machine that he had used before and has used since Gidey's tests. Waters further testified that the machine functioned properly when he tested Gidey and did not appear to have any pieces or components missing. The machine also appeared to be in good working order, and the diagnostic tests the machine conducted on itself before the breath analysis revealed no problems. Waters admitted that he does not know what is under the machine's "hood," but testified that "there [was nothing] irregular about the machine that night[.]"
We find that the State sufficiently proved by competent circumstantial evidence that the breath tests were performed on a machine operated with all its electronic and operating components prescribed by its manufacturer properly attached and in good working order. Bazemore v. State, 225 Ga.App. 741, 743-745(2), 484 S.E.2d 673 (1997). As we have previously found, "substantial statutory compliance [with OCGA § 40-6-392(a)(1)(A) ] can be established by circumstantial evidence arising from the testimony of [the trained and certified individual] who operated the machine and performed the test." Id. at 744, 484 S.E.2d 673. The trial court did not err in admitting the breath test results based upon Waters' testimony. Id.
2. Citing again to OCGA § 40-6-392(a)(1)(A), Gidey similarly...
To continue reading
Request your trial
-
Verlangieri v. State
...certificates required by the statute and DFS rules may be proven orally through competent circumstantial evidence. Gidey v. State [228 Ga.App. 250, 252, 491 S.E.2d 406 (1997)]. In Banks v. State, [235 Ga.App. 701, 509 S.E.2d 63 (1998)] we held that testimony by the officer that he was certi......
-
Frasard v. State
...the test” is sufficient to meet the statute's authenticating procedures. (Citation and punctuation omitted.) Gidey v. State, 228 Ga.App. 250, 252(1), 491 S.E.2d 406 (1997). Here, the arresting officer testified as to both his training in speed detection, including the use of laser devices, ......
-
Jones v. State, A07A0789.
...for admission of the breath test. See State v. Rackoff, 264 Ga. App. 506, 507-508, 591 S.E.2d 379 (2003); Gidey v. State, 228 Ga.App. 250, 251-252(1), 491 S.E.2d 406 (1997). Any argument regarding the subsequent removal or repair of the Intoxilyzer related "to the weight to which the jury s......
-
Benham v. State, A02A2325.
...punctuation omitted.) Arnold v. State, 228 Ga.App. 470, 472(1), 491 S.E.2d 819 (1997). 10. (Punctuation omitted.) Gidey v. State, 228 Ga.App. 250, 253(3), 491 S.E.2d 406 (1997). 11. See OCGA § 16-5-21(b). 12. (Citations and punctuation omitted.) Moody v. State, 206 Ga.App. 387, 388(1), 425 ......