Jordan v. State

• Decision Date: 27 September 1996
• Docket Number: No. A96A2085,A96A2085
• Citation: 223 Ga.App. 176,477 S.E.2d 583
• Parties: JORDAN v. The STATE.
• Court: Georgia Court of Appeals

Page 583

477 S.E.2d 583

223 Ga.App. 176

JORDAN v. The STATE.

No. A96A2085.

Court of Appeals of Georgia.

Sept. 27, 1996.

Reconsideration Denied Oct. 15, 1996.

Certiorari Denied Feb. 14, 1997.

Rich & Smith, Randolph G. Rich, for appellant.

Gerald N. Blaney, Jr., Solicitor, William Z. Meadows, Richard E. Thomas, Assistant Solicitors, for appellee.

ELDRIDGE, Judge.

Following a bench trial, Christopher Jordan was found guilty of driving with an unlawful drug present in his blood or urine, operating a motor vehicle with no insurance, and driving without a license in his possession; appellant was found not guilty of driving with an expired tag. He appeals.

The record shows that a Lawrenceville police officer, operating an unmarked police car, noticed appellant driving through a high crime area in Gwinnett County; the officer's attention was drawn to appellant because the officer had not seen appellant's vehicle in the area before, and appellant was a white male in a predominantly black community. The officer followed appellant. As appellant pulled into a Texaco service station, the officer noted that appellant's Kansas license tag was expired. The officer pulled in behind appellant's parked car, and when appellant exited the Texaco convenience store, the officer asked him for his license and proof of insurance; appellant had neither. The officer detected the odor of marijuana on appellant's clothing. Appellant was given the Miranda warnings and voluntarily made a statement that he had smoked marijuana that morning and had smoked crack cocaine the day before. Appellant was placed under arrest and read the implied consent information. The officer requested a urine sample for chemical testing, to which procedure appellant agreed; appellant requested a breath test, which request was honored. At trial, a forensic chemist testified that the urinalysis performed on appellant's sample was positive for the presence of cocaine, as well as cocaine metabolites.

1. In a two-pronged argument, appellant contends that the trial court erred in finding that the police officer had probable cause to stop appellant. First, appellant argues that the officer's stop of appellant for operating a vehicle with an expired tag was pretextual since the officer testified that his suspicions were aroused because appellant was a white driver in a "high drug area." Second, appellant argues that even if the stop was not simply pretext, the officer was not justified in detaining appellant for driving with an expired Kansas tag because no Georgia law is violated by such an act. Thus, appellant contends that his statements and the results of his urinalysis should have been suppressed as derived from an illegal stop.

Appellant's arguments are not well taken. The first ignores that appellant was not stopped, but followed because of the officer's suspicions. The evidence was uncontroverted that the officer did not approach and, thus, "stop" appellant until after the officer saw that the license tag on appellant's car was expired. That appellant was driving on an expired Kansas license tag is a fact appellant has never denied, and we find that the evidence supports the trial court's determination that, regardless of the officer's debatable reasons for following appellant's car, the actual stop was based upon appellant's operation of a vehicle with an expired tag. Wilder v. State, 192 Ga.App. 891, 892, 386 S.E.2d 685 (1989); Carter v. State, 192 Ga.App. 726, 386 S.E.2d 389 (1989).

Appellant's second argument is equally meritless. Appellant contends that an out of state driver has no obligation to register his vehicle in Georgia, and this state has no interest in the collection of tax revenues for a vehicle with an out of state tag that is not registered herein; thus, the stop of a vehicle based on its operation with an expired out of state tag is not justified since no Georgia law is violated by such an act. Taking appellant's argument to its logical conclusion, the citizens of Georgia could avoid ad valorem taxes on vehicles altogether through the convenient attachment of an expired out of state license tag, since an officer could never justifiably stop a vehicle to investigate the use thereof. However, fortunately for law enforcement and contrary to appellant's assertions, an investigative stop can be utilized to determine if a law is being broken. This is the type of brief detention authorized by Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), in order to "balance intrusion against crime prevention or law enforcement." (Emphasis supplied.) State v. Adams, 186 Ga.App. 87, 88, 366 S.E.2d 326 (1988). What is required by an officer is a "founded suspicion" as a basis from which a court can determine that the stop was not merely arbitrary, capricious, or harassing. Tedford v. State, 213 Ga.App. 252, 254, 444 S.E.2d 156 (1994). In the case sub judice, the police officer was justified in approaching the appellant to determine if the operation of appellant's motor vehicle with an expired Kansas license tag was in violation of OCGA § 40-2-8(b). See Wilder, supra at 892, 386 S.E.2d 685. There was no error.

2. For a myriad of reasons, appellant contends that the results of his urine drug tests were inadmissible. We disagree.

With regard to the foundational requirements for the admission of urine drug test results, OCGA § 40-6-392(a)(1)(A) states: "Chemical analysis of the person's blood, urine, breath, or other bodily substance, to be considered valid under this Code section, shall have been performed according to methods approved by the Division of Forensic Sciences of the Georgia Bureau of Investigation [hereafter GBI] on a machine which was operated with all its electronic and operating components prescribed by its manufacturer properly attached and in good working order and by an individual possessing a valid permit issued by the Division of Forensic Sciences for this purpose." Thus, in order to meet the requirements for admissibility of a urinalysis under this Code section, the State must introduce evidence that: (1) the test was performed under methods approved by the GBI; (2) on a machine which was in good working order; and (3) by an individual with a valid permit to conduct such testing. See Lewis v. State, 215 Ga.App. 486, 488, 451 S.E.2d 116 (1994). ¹

In the case sub judice, Dr. Horton McCurdy, a toxicologist with the Forensic Sciences Division of the GBI, was qualified as an expert for the state; the doctor testified as to his training on the urinalysis instruments, his authority to perform urine drug tests, and the methods he utilizes to perform these tests. Appellant did not object to any of Dr. McCurdy's qualifications or procedures. Dr. McCurdy testified that both of the instruments he used were in good working order pursuant to statutory requirements, and that he had tested each machine prior to performing appellant's urine drug tests. In addition, the State introduced a certificate of inspection for each instrument which demonstrated compliance with the statutory requirements; Dr. McCurdy also testified that each machine is checked for accuracy prior to the performance of any test thereon. The doctor testified that he possessed a valid permit from the GBI for the operation of the machines. Thereafter, Dr. McCurdy testified in detail as to each test that he had performed on appellant's urine sample, how it was performed, and the results thereof.

This Court finds that the testimony of Dr. McCurdy was sufficient to meet the foundational requirements of OCGA § 40-6-392(a)(1)(A) for the admission of the evidence of appellant's urine drug tests, and the results of those tests. Lewis, supra at 488, 451 S.E.2d 116; Martin v. State, 214 Ga.App. 614, 617, 448 S.E.2d 471 (1994). Appellant's complaints regarding the length of time that had elapsed between the original certification of the machines and the date of appellant's urinalysis goes to the weight and not the admissibility of the evidence, especially in light of Dr. McCurdy's testimony that the machines are tested regularly and were working properly pursuant to statutory requirements at the time of appellant's urinalysis. See Lattarulo v. State, 261 Ga. 124, 126, 401 S.E.2d 516 (1991) (evidence that machine might have malfunctioned relates to weight rather than admissibility). In point of fact, Dr. McCurdy's testimony, alone, was sufficient to demonstrate compliance with the statute without the submission of the certificates of inspection. ² Appellant has not shown that he has been harmed by their admission. Scott v. State, 213 Ga.App. 84, 88, 444 S.E.2d 96 (1994).

Appellant also challenges the methods whereby the tests were conducted and submits for this Court's review seven pages of the lengthy Rules of the GBI in order for us to determine the "total absence" of any GBI-approved method by which to conduct urine testing. Further, appellant challenges Dr. McCurdy's authorization to conduct a urine drug test. This Court finds that these challenges have been waived by appellant's failure to raise objection thereon in the court below. Jackson v. State, 217 Ga.App. 485, 488, 458 S.E.2d 153 (1995).

In addition, appellant contends that the results of his urine drug tests are inadmissible because the officer failed to follow the requirements of OCGA § 40-5-67.1(a) which, according to appellant, mandate that either a breath test or a blood test must be given before the officer may require a urine test.

We note at the outset that in the case sub judice, appellant received a breath test and a urine test; thus, even under appellant's reading of OCGA § 40-5-67.1(a), there was substantial compliance with the statute. See OCGA § 1-3-1(c). Further, a violation of OCGA § 40-5-67.1(a) would not necessarily affect the admissibility of appellant's urine drug test pursuant to OCGA § 40-6-392(a)(1)(A). See State v. Hassett, 216 Ga.App. 114, 453 S.E.2d 508 (1995), relying on ...