Gutierrez v. State

• Decision Date: 09 September 1997
• Docket Number: No. A97A1633,A97A1633
• Citation: 491 S.E.2d 898,228 Ga.App. 458
• Parties: , 97 FCDR 3369 GUTIERREZ v. The STATE.
• Court: Georgia Court of Appeals

Page 898

491 S.E.2d 898

228 Ga.App. 458, 97 FCDR 3369

GUTIERREZ v. The STATE.

No. A97A1633.

Court of Appeals of Georgia.

Sept. 9, 1997.

Certiorari Denied Jan. 5, 1998.

William C. Head, Atlanta, for appellant.

Tommy K. Floyd, District Attorney, Thomas R. McBerry, Blair D. Mahaffey, Assistant District Attorneys, for appellee.

JOHNSON, Judge.

After a bench trial, Gary Gutierrez was convicted of driving under the influence of alcohol. He appeals.

1. Gutierrez contends the trial court erred in admitting Intoxilyzer 5000 test results when the state failed to show that the machine on which the breath test was performed had all of its parts attached and in good working order. See OCGA § 40-6-392(a)(1)(A). We disagree.

For a chemical analysis of a person's breath to be valid under OCGA § 40-6-392(a)(1)(A), the test must have been conducted on a machine which was operated with all its electronic and operating components prescribed by its manufacturer properly attached and in good working order. A trooper with the Georgia State Patrol, who was responsible for servicing and training personnel to operate the Intoxilyzer 5000, testified that he inspected the machine on December 1, 1994, ten days before Gutierrez was tested; maintenance records verifying this inspection were admitted into evidence. The trooper explained that the inspection procedure includes a diagnostic check and that during the check, "[i]f [the machine] fails in any way, we get a printout saying it fails. It tells us what part of the instrument failed." When asked by the court whether there were any indications that the machine was not functioning properly, the witness responded that there were not. The state trooper also testified that the manufacturer provided a certificate stating that the machine had been calibrated and was working properly when it was sent to the local police department. He added that the officer who initially set up the machine in August 1994 verified that it was working properly at that time. No witness suggested that any part of the machinery was missing or the machine was not functioning properly. Accordingly, the state sufficiently proved that the machine was operated with all its components properly attached and in good working order at the time Gutierrez took the test. See generally Bazemore v. State, 225 Ga.App. 741, 744(2), 484 S.E.2d 673 (1997).

We are not persuaded by Gutierrez's argument that the test results were inadmissible because the inspection did not include tests to determine whether machine components designed to detect the presence of interfering substances were working properly. As discussed above, there was no evidence that the machine was not working properly in this or any other respect. Indeed, the diagnostic test did not indicate that any part of the machine was not operating properly. In any event, the fact that a testing procedure has some margin for error or may give an erroneous result under certain circumstances relates to the weight, rather than the admissibility, of the test results. See Lattarulo v. State, 261 Ga. 124, 126(3), 401 S.E.2d 516 (1991); see generally Walker v. State, 204 Ga.App. 559, 562(4), 420 S.E.2d 17 (1992).

Finally, contrary to Gutierrez's argument, the fact that the officer who operated the Intoxilyzer 5000 did not know how to calibrate it is of no consequence since he was only responsible for operating the machine. We note that counsel for...