Massey v. State

• Decision Date: 20 March 2015
• Docket Number: No. A14A2173.,A14A2173.
• Citation: 331 Ga.App. 430,771 S.E.2d 122
• Parties: MASSEY v. The STATE.
• Court: Georgia Court of Appeals

331 Ga.App. 430

771 S.E.2d 122

MASSEY

v.The STATE.

No. A14A2173.

Court of Appeals of Georgia.

March 20, 2015.

Certiorari Denied June 1, 2015.

Matthew Wayne Kilgo, Atlanta, Gregory Allen Willis, for Appellant.

Rosanna M. Szabo, Robert Walker Stills Jr., for Appellee.

Opinion

ANDREWS, Presiding Judge.

Jonathan Aaron Massey was charged by accusation with the offense of driving with an alcohol concentration of 0.08 grams or more in violation of OCGA § 40–6–391(a)(5). Massey brings this interlocutory appeal from the trial court's denial of his pre-trial request pursuant to OCGA § 40–6–392(a)(4) for discovery concerning the blood test conducted by the State to determine his blood alcohol concentration. For the following reasons, we affirm.

1. At the time of his arrest for driving under the influence, Massey was given the implied consent notice and refused a State-administered chemical test of his breath requested by the arresting officer. After Massey refused the requested test, the officer immediately obtained a search warrant pursuant to which blood was forcibly taken from Massey. The officer sent Massey's blood to the Georgia Bureau of Investigation, where a forensic toxicologist employed by the Forensic Sciences Division (the State Crime Lab) chemically tested the blood using a gas chromatography

instrument. Based on the test results, the toxicologist generated a report finding that the blood had an alcohol concentration of 0.133 grams (plus or minus 0.005 grams) per 100 milliliters. Massey filed a pre-trial discovery request seeking information about the blood test pursuant to the discovery provisions set forth in OCGA § 40–6–392(a)(4). The trial court denied the discovery request on the basis that OCGA § 40–6–392(a)(4) expressly limits discovery concerning chemical testing of a person's blood, urine, breath, or other bodily substance to “the person who shall submit to a chemical test or tests at the request of a law enforcement officer.” The court concluded that the discovery provisions of subsection (a)(4) did not apply because Massey refused to submit to a breath test requested by the officer at the time of his arrest, and the alcohol concentration test at issue was conducted on blood forcibly taken from Massey pursuant to a search warrant obtained by the officer.

OCGA § 40–6–392(a) provides in relevant part:

(a) Upon the trial of any civil or criminal action or proceeding arising out of acts alleged to have been committed by any person in violation of Code Section 40–6–391, evidence of the amount of alcohol or drug in a person's blood, urine, breath, or other bodily substance at the alleged time, as determined by a chemical analysis of the person's blood, urine, breath, or other bodily substance shall be admissible. Where such a chemical test is made, the following provisions shall apply:

(1)(A) 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 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. The Division of Forensic Sciences of the Georgia Bureau of Investigation shall approve satisfactory techniques or methods to ascertain the qualifications and competence of individuals to conduct analyses and to issue permits, along with requirements for properly operating and maintaining any testing instruments, and to issue certificates certifying that instruments have met those requirements, which certificates and permits shall be subject to termination or revocation at the discretion of the Division of Forensic Sciences....

(2) When a person shall undergo a chemical test at the request of a law enforcement officer, only a physician, registered nurse, laboratory technician, emergency medical technician, or other qualified person may withdraw blood for the purpose of determining the alcoholic content therein, provided that this limitation shall not apply to the taking of breath or urine specimens. No physician, registered nurse, or other qualified person or employer thereof shall incur any civil or criminal liability as a result of the medically proper obtaining of such blood specimens when requested in writing by a law enforcement officer;

(3) The person tested may have a physician or a qualified technician, chemist, registered nurse, or other qualified person of his own choosing administer a chemical test or tests in addition to any administered at the direction of a law enforcement officer. The justifiable failure or inability to obtain an additional test shall not preclude the admission of evidence relating to the test or tests taken at the direction of a law enforcement officer; and

(4) Upon the request of the person who shall submit to a chemical test or tests at the request of a law enforcement officer, full information concerning the test or tests shall be made available to him or his attorney. The arresting officer at the time of arrest shall advise the person arrested of his rights to a chemical test or tests according to this Code section....

(d) In any criminal trial, the refusal of the defendant to permit a chemical analysis to be made of his blood, breath, urine, or other bodily substance at the time of his arrest shall be admissible in evidence against him. (Emphasis added).

An officer's authority to request at the time of arrest that a driver submit to the above described chemical testing for alcohol or drugs, and to direct the test to be administered (after obtaining consent), derives from the implied consent provisions of OCGA § 40–5–55(a), which provide that:

The State of Georgia considers that any person who drives or is in actual physical control of any moving vehicle in violation of any provision of Code Section 40–6–391 constitutes a direct and immediate threat to the welfare and safety of the general public. Therefore, any person who operates a motor vehicle upon the highways or elsewhere throughout this state shall be deemed to have given consent, subject to Code Section 40–6–392, to a chemical test or tests of his or her blood, breath, urine, or other bodily substances for the purpose of determining the presence of alcohol or any other drug, if arrested for any offense arising out of acts alleged to have been committed in violation of Code Section 40–6–391 or if such person is involved in any traffic accident resulting in serious injuries or fatalities. The test or tests shall be administered at the request of a law enforcement officer having reasonable grounds to believe that the person has been driving or was in actual physical control of a moving motor vehicle upon the highways or elsewhere throughout this state in violation of Code Section 40–6–391. The test or tests shall be administered as soon as possible to any person who operates a motor vehicle upon the highways or elsewhere

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