State v. Kampplain, A96A1664

• Decision Date: 27 September 1996
• Docket Number: No. A96A1664,A96A1664
• Citation: 223 Ga.App. 16,477 S.E.2d 143
• Parties: The STATE, v. KAMPPLAIN.
• Court: Georgia Court of Appeals

Page 143

477 S.E.2d 143

223 Ga.App. 16

The STATE, v. KAMPPLAIN.

No. A96A1664.

Court of Appeals of Georgia.

Sept. 27, 1996.

T. Joseph Campbell, District Attorney, Lance T. McCoy, Assistant District Attorney, for appellant.

Perrotta & Associates, Gerard P. Verzaal, Cartersville, for appellee.

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. 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 § 40-6-392(a) because the machine used for testing was not operated with all the electronic and operating components prescribed by its manufacturer properly attached thereto and in good working order. Held:

OCGA § 40-6-392(a) in effect provides for the general admissibility of evidence of the amount of alcohol or drug in a person's blood, urine, breath, or other bodily substance as determined by chemical analysis thereof; however, to be considered valid, the results of such chemical analysis must comply with the provisions of OCGA § 40-6-392(a)(1)(A). Subsection (a)(1)(A) pertinently provides: "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 ... 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." (Emphasis supplied.) OCGA § 40-6-392(f) further provides: "Each time an approved breath-testing instrument is inspected, the inspector shall prepare a certificate which shall be signed under oath by the inspector and which shall include the following language: 'This breath-testing instrument (serial no. _________) was thoroughly inspected, tested, and standardized by the undersigned on (date ___________) and all of its electronic and operating components prescribed by its manufacturer are properly attached and are in good working order.' When properly prepared and executed, as prescribed in this subsection, the certificate shall, notwithstanding any other provision of law, be self-authenticating, shall be admissible in any court of law, and shall satisfy the pertinent requirements of paragraph (1) of subsection (a) of this Code section and subparagraph (g)(2)(F) of Code Section 40-5-67.1." (Emphasis supplied.) OCGA § 40-5-67.1(g)(1) pertinently provides that if a person whose driver's license is suspended or who is disqualified from operating a commercial motor vehicle shall request a hearing in writing within the prescribed time, the hearing shall be held within 30 days after the Department of Public Safety receives notice of the written request. OCGA § 40-5-67.1(g)(2), as amended, pertinently provides that the scope of the hearing shall be limited to the following issues: "(F) Whether the...