Smith v. State
| Decision Date | 15 November 2013 |
| Docket Number | No. A13A1282.,A13A1282. |
| Citation | 750 S.E.2d 758,325 Ga.App. 405 |
| Parties | SMITH v. The STATE. |
| Court | Georgia Court of Appeals |
Head, Thomas, Webb & Willis, Gregory Allen Willis, Atlanta, for Appellant.
R. Leon Benham, Asst. Sol.-Gen., Carmen D. Smith, Sol.-Gen., for Appellee.
Following a bench trial, Jason Smith appeals from his conviction for driving under the influence of alcohol with an unlawful blood alcohol concentration ("DUI per se") in violation of OCGA § 40–6–391(a)(5). Smith contends that (1) the evidence was insufficient to support the finding of guilt; (2) the printed Intoxilyzer 5000 test results were inadmissible under OCGA § 40–6–392(a)(1)(B) ; (3) the State unlawfully failed to disclose the computer "source code" of the Intoxilyzer 5000; (4) the trial court erroneously denied his motion for a continuance pending the outcome of a Kentucky appeal pertaining to the source code; and (5) the trial court ruled on his motion for discharge and acquittal without making required findings. For the reasons that follow, we affirm the finding of guilt and remand for proper findings under Barker v. Wingo1 and Doggett v. United States.2
Construed in favor of the verdict,3 the evidence shows that an officer was dispatched to the scene of an automobile wreck, where he encountered Smith being treated by paramedics near his wrecked car. The paramedics told the officer that they believed Smith was under the influence of alcohol, and the officer smelled an odor of alcohol about Smith when he spoke to him. The officer called the DUI unit to investigate, and a trained DUI investigator, Sergeant Eric Teague, was dispatched to the scene. Teague smelled an odor of alcohol as he spoke to Smith, who admitted that he had "several drinks," and Teague conducted field sobriety tests and administered an alco-sensor test which returned a positive result. Teague concluded that Smith was under the influence of alcohol to the extent that he was a less safe driver and arrested him.
Teague read Smith the implied consent warning, and Smith agreed to take a breath test. Teague then transported him to a pretrial detention center where the breath test was administered on an Intoxilyzer 5000. The test registered a 0.126 result on the first sample, and the second sample of the test did not return a result.
Based on the investigation and the breath test, Smith was charged with DUI per se and driving under the influence to the extent it was less safe to do so4 ("DUI less safe"). During a bench trial, the State dropped the DUI less safe charge, and the trial court found Smith guilty on the DUI per se count. Smith's motion for new trial was denied, giving rise to this appeal.
1. Smith first contends that there was insufficient evidence showing that he had a blood alcohol concentration of 0.08 grams or more at any time within three hours after driving or being in actual physical control of the car, as required by the DUI statute.5 We disagree.
Viewed under this standard, Smith's argument fails.
"Driving a vehicle while intoxicated may be shown by circumstantial evidence, which must exclude every other reasonable hypothesis in order to support a conviction."7 Whether a competing hypothesis is reasonable is for the fact finder because it "is the best ‘doctor of doubt.’ "8 "[W]here the [factfinder] is authorized to find that the evidence, though circumstantial, was sufficient to exclude every reasonable hypothesis save that of guilt, the appellate court will not disturb that finding, unless the verdict of guilty is unsupportable as a matter of law."9
Smith first argues that the evidence failed to show that he was the driver.10 But the first responding officer testified that and the officer smelled an odor of alcohol on "the driver," whom he identified as Smith at trial. The record does not disclose whether this description was hearsay from the paramedics or from Smith himself, nor did Smith object on that ground, so Smith has not demonstrated that this characterization of him as the driver was inadmissible. Furthermore, Teague testified that Smith volunteered to him that he was not at fault for the traffic accident because someone else had hit or sideswiped him.11 Smith also discussed with the officer the fact that even if he was not at fault he could be considered an impaired driver. Based on the record before us, we conclude that evidence authorized the trial court to find that no reasonable hypothesis existed other than he was the driver of the car.12
Next, with respect to whether Smith was shown to have an unlawful blood alcohol concentration within three hours of driving, Teague testified on direct that the test was done within three hours of Smith's driving. He further explained that this was based on the interval between the computer-recorded time that he was dispatched to the scene (10:45 p.m.) upon request by the initial investigating officer and the time recorded on the Intoxilyzer test (11:44 p.m.). Further, there was evidence that paramedic first responders were still treating Smith while the initial responding officer was on the scene, and that the initial officer smelled alcohol on Smith at that time, so this supports a finding that the accident scene was still "fresh" at the time Teague was dispatched, which preceded the Intoxilyzer test by only one hour.13 Finally, there was no evidence that Smith consumed alcohol after driving, so Smith's test result, 0.126, following these events suggests that his blood alcohol concentration would have been even higher closer in time to his driving.14 Accordingly, the evidence authorized the trial court to find that the only reasonable hypothesis was that Smith's blood alcohol concentration was above the statutory 0.08 threshold within three hours after he drove.
2. Smith next contends that the breath test results were inadmissible because they did not comply with OCGA § 40–6–392(a)(1)(B). That Code section provides as follows:
In all cases where the arrest is made on or after January 1, 1995, and the [S]tate selects breath testing, two sequential breath samples shall be requested for the testing of alcohol concentration. For either or both of these sequential samples to be admissible in the [S]tate's or plaintiff's case-in-chief, the readings shall not differ from each other by an alcohol concentration of greater than 0.020 grams and the lower of the two results shall be determinative for accusation and indictment purposes and administrative license suspension purposes. No more than two sequential series of a total of two adequate breath samples each shall be requested by the [S]tate; provided, however, that after an initial test in which the instrument indicates an adequate breath sample was given for analysis, any subsequent refusal to give additional breath samples shall not be construed as a refusal for purposes of suspension of a driver's license under Code Sections 40–5–55 and 40–5–67.1. Notwithstanding the above, a refusal to give an adequate sample or samples on any subsequent breath, blood, urine, or other bodily substance test shall not affect the admissibility of the results of any prior samples. An adequate breath sample shall mean a breath sample sufficient to cause the breath-testing instrument to produce a printed alcohol concentration analysis.15
Here, Smith's first sample was adequate, and the Intoxilyzer registered a 0.126 blood alcohol concentration. Smith blew a second time but did not provide a sufficient sample, and the machine "timed out" before Smith provided an adequate sample. No further breath test was administered. Smith argues that the result of the initial sample was not admissible because the State could not show that two samples were taken and did not differ by greater than 0.020 grams alcohol concentration.
This Court has addressed a similar situation in Thrasher v. State,16 where the defendant's first sample was sufficient, but his second sample was not because "Thrasher failed to blow enough air into the machine during the second attempt."17 Thrasher claimed that he was unable to blow a second sample due to asthma, so his failure to provide a second sample should not have been considered a "refusal" under OCGA § 40–6–392(a)(1) (B). This Court rejected the argument, ruling that determining the reason for the failed second sample was for the trial court, which sat as the trier of fact when determining the admissibility of evidence.18
In the instant case, the officer administering the test stated that Smith It was for the trial court to evaluate the credibility of the witness, resolve disputed facts, and determine the reason for the failed second sample.19 Based on the record before us, we discern no clear error in its finding that the first sample was admissible.20
3. Smith argues that the State has constructive possession of the computer source code for the Intoxilyzer 5000, and the trial court erred by admitting...
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