Oldham v. State
| Citation | 422 S.E.2d 38,205 Ga.App. 268 |
| Decision Date | 16 July 1992 |
| Docket Number | No. A92A0140,A92A0140 |
| Parties | OLDHAM v. The STATE. |
| Court | United States Court of Appeals (Georgia) |
Frank J. Petrella, Atlanta, for appellant.
Robert E. Keller, Dist. Atty., Tracy G. Gladden, Asst. Dist. Atty., for appellee.
Appellant/defendant James E. Oldham II appeals his conviction of operating a moving motor vehicle while there was at least 0.12 percent by weight of alcohol in his blood. Defendant was also indicted for vehicular homicide and driving while under the influence of alcohol to the extent that he was a less safe driver, but found not guilty of those charges.
1. We will consider defendant's first and second enumerations of error together. First defendant contends the evidence was insufficient to allow a rational trier of fact to find that defendant was operating a moving motor vehicle while there was at least 0.12 percent by weight of alcohol in his blood. In his second enumeration of error, defendant argues the trial court erred by refusing to allow him to introduce the results of a blood/alcohol test.
Defendant admitted that he consumed several beers on the night in question. Defendant further testified that after consuming those beers he drove his vehicle accompanied by a friend, who was killed when defendant lost control of his vehicle and the vehicle struck a guard rail. The record reveals that approximately one hour after the collision defendant's blood was tested for the presence of alcohol and his blood/alcohol concentration was determined to be .129 percent. The State admitted that test result into evidence without objection.
Defendant sought to introduce the results of a second blood/alcohol test allegedly administered two minutes after the first test. That test showed a .11 percent blood/alcohol concentration level. The trial court refused to allow the document containing the test result into evidence.
When deciding whether the results of an alcohol concentration level test should be admitted into evidence, the trial court must engage in a two-part analysis. First, the trial court must decide if the test result must comply with the dictates of OCGA § 40-6-392. In that statute, the Georgia legislature set forth when test results for alcohol or drugs would be deemed valid and admissible evidence "in a civil or criminal action arising out of events where a person is allegedly operating a motor vehicle under the influence of alcohol or drugs." Perano v. State, 250 Ga. 704, 707, 300 S.E.2d 668 (1983). As the Georgia Supreme Court recognized in Perano, the procedures outlined in that statute are limited to those test performed at the request or direction of a law enforcement officer. Id. When an alcohol level concentration test is performed at the request or direction of a law enforcement officer and complies with the dictates of that statute, it is admissible.
Often, however, a party seeks to admit at a trial the results of an alcohol concentration level test which was not performed at either the request or direction of a law enforcement officer. Those tests are not subject to the dictates of OCGA § 40-6-392 and the party seeking to admit the test results must satisfy the court that the results are admissible pursuant to the rules of evidence. Jackson v. State, 196 Ga.App. 724, 397 S.E.2d 13 (1990); Bynum v. Standard Oil Co., 157 Ga.App. 819, 820(2), 278 S.E.2d 669 (1981). 1
The most frequent objection posed to bar the admission of such test results is that the test results are hearsay and therefore cannot be admitted into evidence. Documentary evidence of a test designed to measure a person's alcohol concentration level may be admitted into evidence under the business records exception to the hearsay rule, when the party seeking to admit the test results lays a proper foundation by offering the testimony of a witness who is familiar with the method of record keeping, who can therefore testify that the entry of the test results was made in the regular course of business at the time the test was conducted or within a reasonable time thereafter. Wilson v. Childers, 174 Ga.App. 179, 180, 329 S.E.2d 503 (1985); Venenga v. State, 163 Ga.App. 161(3), 293 S.E.2d 553 (1982). It is not necessary to have the person who performed the test or the person who ordered the test to testify, because the test results are purely factual data. The numerical result (alcohol concentration level) is determined by the machine used to administer the test, not by the person who performs the test. Our statutes then determine what legal conclusion may be drawn from the test results. See Walters v. State, 195 Ga.App. 434(6), 394 S.E.2d 105 (1990) ().
Business records containing only test results must be distinguished from those records that contain conclusions and opinions in addition to the test results or in lieu of the test results. See Johnson v. State, 256 Ga. 259, 260, 347 S.E.2d 584 (1986). Such opinions, conclusions and diagnoses constitute additional hearsay and unless the person whose diagnosis, conclusion or opinion which is contained on the business record is available to testify and can be qualified as an expert capable of rendering such an opinion, the portion of the business record containing the hearsay is inadmissible. Moody v. State, 244 Ga. 247(4), 260 S.E.2d 11 (1979); Spivey v. State, 184 Ga.App. 118, 361 S.E.2d 9 (1987). 2
When defendant sought to introduce the document containing the second test result, the State objected to the document solely on the basis that it contained an opinion. A review of the document, however, reveals that it contains only the numerical result of the alcohol concentration level test performed on defendant's blood, which is not an opinion. The document does not contain opinions, conclusions or diagnoses requiring expert testimony. Furthermore, the defendant laid a proper foundation for the admission of the document through the testimony of the custodian of records of the laboratory where the second test was conducted. Accordingly, the trial court erred by refusing to admit this test into evidence. The exclusion of this test result cannot be harmless error in this case since the second test showing defendant's blood/alcohol concentration level to be .11 percent was conducted only two minutes after the first test showing a .129 percent blood/alcohol concentration level and would tend to create doubt concerning the accuracy of the first test.
The dissent concedes that it may be inferred from the document that the blood sample used for the test in question was drawn at 5:42 a.m. on January 26, 1990. The top portion of the document was obviously generated by computer. In the block labelled time the numbers "0542" appear. A reference to time in this manner, without the use of a separating colon and with the beginning number being "0," clearly indicates that the time given was on a 24-hour clock, as is used by the military. All persons familiar with 24-hour clocks or military time would know that the time the blood was drawn was 5:42 a.m.
The dissent also posits that because the records custodian did not testify that the test results were recorded on the document at the time of the test or within a reasonable time thereafter, the document was properly excluded. While it is not indisputable from the face of the document, the document indicates that the results were recorded on the same day as the test was administered. 3 Furthermore, the State did not object to the admission of the document in question on that basis and such an objection is deemed waived. As the author of the dissent recently recognized when an objection is not lodged at trial, it should not be entertained on appeal. Banks v. State, 201 Ga.App. 266, 267(1), 410 S.E.2d 818 (1991).
The dissent suggests the type of test used to determine the defendant's alcohol concentration level is determinative of whether the results are factual data or opinion. Although the dissent is correct that there are both gas and chemical tests used to determine blood/alcohol concentration levels, machines are used in each kind of test to measure the level of alcohol concentration. The numerical determination of the alcohol concentration level is objective factual data regardless of the type of test performed. Our courts have recognized the reliability of both gas and chemical tests.
The dissent mischaracterizes the testimony of the forensic chemist who performed the first test of defendant's blood/alcohol concentration level. He was asked if based on the test results he had an opinion concerning defendant's blood/alcohol level. He testified that based upon the test results his opinion was defendant's blood had an alcohol concentration level of 12 grams per 100 milliliters of blood. He formed an opinion based upon the test results, but the results themselves are not opinions.
Finally, the dissent takes issue with disapproving our decisions in Bynum v. Standard Oil Co., Spivey v. State, and Jackson v. State based on factual distinctions between those cases and this case. There will always be factual distinctions between our cases; however, all these cases dealt with the issue of admissibility of test results. It is our duty to the bench and bar of this state to give clear guidance on...
To continue reading
Request your trial
-
Malcolm v. State
...only admissible test results and not opinions and conclusions for which no foundation had been laid. Compare Oldham v. State, 205 Ga.App. 268, 270(1), 422 S.E.2d 38 (1992). The excluded laboratory reports are not included in the record. Even if it were not otherwise apparent from the transc......
-
Daniel v. State
...there is no requirement that the testifying witness have personal knowledge of the specific document's creation. Oldham v. State, 205 Ga.App. 268, 270(1), 422 S.E.2d 38 (1992). Accordingly, we find no error in admitting into evidence the hospital-administered blood test. Dixon, 227 Ga.App. ......
-
Payne v. State, A98A0596.
...343, 211 S.E.2d 294 (1974). 8. 268 Ga. 76, 485 S.E.2d 486 (1997). 9. 266 Ga. 850, 472 S.E.2d 74 (1996). 10. See Oldham v. State, 205 Ga.App. 268(1), 422 S.E.2d 38 (1992); compare Daniel v. State, 227 Ga.App. 92, 488 S.E.2d 129 (1997). The Supreme Court of Georgia's recent decision in Fantas......
-
Dixon v. State
...pursuant to the applicable rules of evidence as proof of alcohol concentration levels in criminal or civil cases. Oldham v. State, 205 Ga.App. 268, 269, 422 S.E.2d 38 (1992); Bynum, supra. In reference to these tests, subsection (b) of OCGA § 40-6-392 provides that, except as to certain pro......