State v. Kampplain, A96A1664
| Court | United States Court of Appeals (Georgia) |
| Writing for the Court | BIRDSONG; BEASLEY, C.J., and BLACKBURN |
| Citation | 223 Ga.App. 16,477 S.E.2d 143 |
| Parties | The STATE, v. KAMPPLAIN. |
| Docket Number | No. A96A1664,A96A1664 |
| Decision Date | 27 September 1996 |
Page 143
v.
KAMPPLAIN.
Page 144
[223 Ga.App. 19] T. Joseph Campbell, District Attorney, Lance T. McCoy, Assistant District Attorney, for appellant.
Perrotta & Associates, Gerard P. Verzaal, Cartersville, for appellee.
[223 Ga.App. 16] BIRDSONG, Presiding Judge.
On November 3, 1994, appellee/defendant Rickey Allen Kampplain a/k/a Ricky Allen Kampplain and Rick Allen Kampplain was stopped while driving a motor vehicle. He was given an implied consent warning and submitted to a breath test at the request of the police. Although a new Intoxilizer 5000 was present at the police station and certified operators were present, the police could not get the machine to operate properly; therefore, appellee was tested on an Intoximeter 3000, which did not have the Taguchi cell attached.
Appellee subsequently was charged with DUI, and he thereafter filed a motion to suppress the intoximeter test results. The parties stipulated to the facts relevant to the suppression motion, including the fact that the State could not produce a certificate of breath-testing instrument inspection in accordance with the current requirements of OCGA § 40-6-392. These pertinent statutory provisions require an express certification that the testing machine is "in good working order" and that "all its electronic and operating components prescribed by its manufacturer [are] properly attached." OCGA § 40-6-392(a)(1)(A) and (f). After hearing argument of counsel, the trial court granted the motion to suppress the intoximeter results.
The State appeals from the order of the superior court suppressing the results of a breath test administered to appellant on the Intoximeter 3000. The motion to suppress was based on the State's failure to produce the inspection certificate required by OCGA § 40-6-392(a)(1)(A) and (f) and on the alleged failure of the police to provide appellee with the opportunity to obtain an additional test pursuant to his request. However, in view of the ruling of the trial court granting the suppression motion after the first issue was addressed and argued, witnesses were not called to testify regarding the latter issue.
The State's sole enumeration of error is that the trial court erred when it suppressed the breath test results. Specifically, the State contends the trial court erred in concluding that OCGA § 40-6-392(a)(1)(A) and (f), which was not enacted until April 21, 1995, required retroactive application and the suppression of the State's breath test. [223 Ga.App. 17] The issue before us is whether the trial court erred in suppressing the Intoximeter 3000 test results when the State could not obtain proof that this particular machine would meet the statutory foundation requirements of OCGA §...
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...recognize that the trial court has discretion to exclude undisclosed evidence under certain circumstances. See also State v. Kampplain, 223 Ga.App. 16, 18, 477 S.E.2d 143 (1996) ("[e]vidence exclusion is an extreme sanction and not one favored as a matter of course in the In accordance with......
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...in the statute is meant to preclude Page 200 the State "from proving a DUI offense by other admissible evidence." State v. Kampplain, 223 Ga.App. 16, 19, 477 S.E.2d 143 (1996); Hobbs v. State, 224 Ga.App. 314, 480 S.E.2d 330 (1997). The "other admissible evidence" that may satisfy the requi......
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