Lattarulo v. State
| Decision Date | 28 February 1991 |
| Docket Number | No. S91A0204,S91A0204 |
| Citation | 401 S.E.2d 516,261 Ga. 124 |
| Parties | LATTARULO v. The STATE. |
| Court | Georgia Supreme Court |
Virgil L. Brown, Eric D. Hearn, Virgil L. Brown & Associates, Bentley C. Adams, III, Zebulon, for Lattarulo.
Carl A. Veline, Jr., Sol., Cynthia Trimboli Adams, Asst. Sol., Warner Robins, for the State.
This is an appeal from a conviction for driving under the influence of alcohol. Appellant raises several constitutional issues and other alleged errors in the trial of her case. We find no error and affirm the conviction.
Carrie Angela Lattarulo was stopped for speeding. When she emerged from her car, the arresting officer noticed that she was unsteady on her feet, that her speech was slurred, her breath smelled of alcohol, her clothing was disarranged, and her face was flushed. The officer also observed four or five empty beer bottles on the front floorboard of the car. A breathalyzer test given about an hour after she was stopped yielded a .19 blood/alcohol concentration result. Lattarulo was arrested and convicted of speeding and driving under the influence.
1. Lattarulo first contends that OCGA § 40-6-392(b)(3) creates an unconstitutional, burden-shifting presumption that a person with 0.10 grams of alcohol per liter of blood is "under the influence" of alcohol.
In Lester v. State, 253 Ga. 235, 320 S.E.2d 142 (1984), we upheld the constitutionality of OCGA § 40-6-391(a)(4) which criminalizes the act of "driving while having a blood-alcohol count of at least .12%." Id. at 237, 320 S.E.2d 142. We explained that by so defining the criminal act, the legislature had made irrelevant the driving ability of any individual with that blood-alcohol ratio. We said, "[t]he statute represents the judgment that the public interest will be best served if no one with such a high blood-alcohol count drives." Id. at n. 5, 320 S.E.2d 142. We held that the statute did not create an unconstitutional presumption of guilt because (1) the state is still required to prove beyond a reasonable doubt that the defendant committed the act of driving while having a blood-alcohol level of .12 or higher; and, (2) any defendant may challenge either the evidence that he had that blood-alcohol level or that he was driving. Id.
We now hold that the provision challenged here, although it is worded in terms of a presumption, actually has the effect of defining the level of blood-alcohol that is sufficient to permit an inference that the driver is "under the influence." It does not create a burden-shifting presumption of guilt. OCGA § 40-6-392(b)(3) must be read in conjunction with OCGA § 40-6-391(a)(1)-(3) which makes it a crime to drive while "under the influence" of alcohol, a drug or a combination of alcohol and a drug "to the extent that it is less safe for the person to drive." OCGA § 40-6-392(b)(1)-(3) then defines at what level of blood-alcohol a person is "under the influence" within the meaning of OCGA § 40-6-391(a)(1)-(3). OCGA § 40-6-392(b)(1)-(3) represents the legislative determination that the public interest is best served if people with a blood-alcohol level of less than .05 grams or less are permitted to drive; while people with a blood-alcohol concentration between .05 and .099 may drive only if they can do so safely; and people with a blood-alcohol concentration above .10 grams per liter should not drive at all. This determination is within the legislature's authority under the Twenty-First Amendment and the police power and is the type of determination that is particularly well-suited to the legislative process.
The challenged provisions do not relieve the state of its burden of proving that the accused was "under the influence" and was driving. They do not prevent the accused from introducing any evidence to demonstrate that the blood-alcohol test was inaccurate or that he did not commit the offense. Further, precedents of the Court of Appeals have established that the statute may not be charged to the jury using the word "presumption." Simon v. State, 182 Ga.App. 210, 355 S.E.2d 120 (1987); Peters v. State, 175 Ga.App. 463, 333 S.E.2d 436 (1985). Under these precedents, the jury may not be instructed that the blood-alcohol level creates a presumption of guilt. Id. Therefore, we conclude that the challenged provisions do not create an unconstitutional presumption.
2. Lattarulo next argues that the statutory scheme is unconstitutional because it does not apprise her of the "nature and cause of the accusation against her" in violation of the due process and equal protection clauses of the U.S. Constitution. We find no merit in these arguments. The statute as recently amended is no more vague or indefinite than it was when we held that it passed constitutional muster in Cook v. State, 220 Ga. 463, 139 S.E.2d 383 (1964) and in Cargile v. State, 244 Ga. 871, 262 S.E.2d 87 (1979). Indeed, the present statute is even more definite than its predecessors. We find no constitutional infirmity.
3. Lattarulo next asserts that the results of a breathalyzer test carried out on an Intoximeter 3000 machine should be excluded from evidence because they have not been shown to be scientifically reliable.
In Harper v. State, 249 Ga. 519, 525, 292 S.E.2d 389 (1982), we held that the test for admissibility of novel scientific evidence is whether the procedure or technique "has reached a scientific stage of verifiable certainty, or in the words of Professor Irving Younger, whether the procedure 'rests on the laws of nature.' " We went on to say that "[o]nce a procedure has been recognized in a substantial number of courts, a trial judge may judicially notice, without receiving evidence, that the procedure has been established with verifiable certainty, or that it rests upon the laws of nature." Id. at 526, 292 S.E.2d 389. Further, in Caldwell v. State, 260 Ga. 278, 393 S.E.2d 436 (1990), we made clear that the trial court need not exclude scientific evidence simply because it bears some possibility of error. "No procedures are infallible." Id. at 287, 393 S.E.2d 436.
Under the standards enunciated in these cases, the results of breathalyzer tests are clearly admissible. The breathalyzer is hardly "novel" scientific evidence. Its acceptance is almost as widespread as radar or fingerprints. See, e.g., State v. Hartwig, 112 Idaho 370, 732 P.2d 339 (App.1987); State v. Miles, 119 Wis.2d 305, 349 N.W.2d 739 (App.1984); Hamann v. State, 565 A.2d 924 (Del.1989); State v. Jordan, 575 A.2d 309 (Me.1990); Layton City v. Watson, 733 P.2d 499 (Utah 1987). (There is universal acceptance of the reliability of breathalyzer evidence.) The Intoximeter 3000, the type of breathalyzer machine used in this case, is used, at a minimum, in Alaska, Florida, Georgia, Idaho, New Hampshire, New York, Tennessee, Wisconsin, Wyoming, and country-wide in England. Its characteristics, theory, operation, and scientific acceptability have been discussed in numerous judicial opinions. See particularly People v. Jones, 118 Misc.2d 687, 461 N.Y.S.2d 962 (Co.Ct.1983).
Further, the expert testimony introduced by Lattarulo does not indicate that the Intoximeter 3000 test is not based on sound scientific theory, rather it...
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