Brahm v. StateBrahm v. State
- Reporters:
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- Before:
- Smith
Jеffrey Brahm was charged by accusation with two counts of DUI,
1. Brahm contends the trial court erred in admitting the results of thе State-administered blood test because the State failed to establish that the person who drew his blood was “qualified” within the meaning of
In
Harden,
supra, we described two ways for the State to carry this burden. The State may call the person who drew the blood as a witness, and that witness may testify as to his or her qualifications. The State may alsо present a certification from the office of the Secretary of State or the Department of Human Resources showing that the person who drew the blood was licensed or certified in a profes
*408
sion listed in
It is clear from the language in Harden, as well as frоm prior and subsequent case law, that these methods are not exclusive. We held in Harden that the State’s burden could be satisfied in “at least two ways.” (Emphasis supplied.) Id. The words “at least” imply that other ways exist, and the case law makes clear that the State’s burden may be carried in other ways. See, e.g., Bazemore v. State, 225 Ga. App. 741 (484 SE2d 673) (1997), where we held that the State’s burden was satisfied when the State introduced a “self-authenticating” document from the Georgia Department of Human Resources showing that records in the Office of Regulatory Sеrvices show that the person who drew blood was “classified” as a medical laboratory technician. Id. at 742.
As indicated by the words “other qualified pеrson,” neither is the list of qualified occupations and professions in the statute an exhaustive list. In
Thurman v. State,
172 Ga. App. 16, 17 (1) (321 SE2d 780) (1984), and
Gooch v. State,
155 Ga. App. 708, 711 (6) (272 SE2d 572) (1980), this Court held that the phrase “other qualified person” in
But in this case, to establish that Brahm’s bloоd was drawn by a qualified person, the State presented only the testimony of the arresting officer, Corporal R. D. Nable of the Fulton County Police Department, who was assigned to the DUI Task Force. Nable testified that after he read Brahm the implied consent rights and Brahm agreed to take a State-аdministered blood test, he transported Brahm to Northside Hospital, where blood was drawn. Nable identified the person who drew Brahm’s blood by name and employment status: He was “David Simon, who is an employee of Northside Hospital.” Nable further explained that he was familiar with Simon. “[W]hen we go and request a state blood test from somebody, we generally go to Northside Hospital if we are in that part of town. And [David Simon], as well as two or three other people, are employed by the hospital... in their laboratory. And, in that capacity, he’s drawn blood for me several times.”
For purposes of this oрinion, we assume this testimony was not hearsay because it was based upon Nable’s personal knowledge that Simon was employed in the hospital laboratory and had drawn blood in Nable’s presence on previous occasions. This distinguishes it from the testimony presented by the State in Carr v. State, 222 Ga. App. 776, 777-778 (1) (476 SE2d 75) (1996). But even so, it was insufficient to show that Simon was “qualified” within the meaning of the statute.
Brahm timely objected to the admission of the results of the *409 blood test on this ground, and the trial court‘overruled the objection. It is the duty of the trial court to determine the adequacy of the foundation laid for the presentation of evidence. Wigfall v. State, 257 Ga. 585, 586 (2) (361 SE2d 376) (1987). Althоugh the trial court’s discretion in the admission of evidence is broad, Parker v. State, 226 Ga. App. 462, 463 (4) (486 SE2d 687) (1997), it is not boundless. In this instance, Nable’s testimony did not reach the qualifications of Simon, and the triаl court abused its discretion in determining that a sufficient foundation was laid for the admission of the test results.
2. Brahm also contends the trial court erred in admitting the results of the independent chemical test he requested and received, which was performed at a different hospital. To establish the results of this test, the State simply tendered into evidence the medical records showing the test results, which were certified by the director of the medical records dеpartment of the hospital. But unlike the certificate provided for in
This was error. Although business records comprise an exceptiоn’ to the rule against hearsay, they are not admissible without a proper foundation. This Court held in Oldham that “[djocumentary 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 result was made in the regular course of business at the time the test was conducted or within а reasonable time thereafter. [Cits.]” (Emphasis supplied.) Id. at 269-270. In this case, the State failed to lay a proper foundation, Brahm raised a valid objеction, and the document should not have been admitted.
3. We cannot say that the erroneous admission of both tests was harmless. Without either result, no evidence whatsoever exists to support the only DUI charge on which Brahm was convicted: driving *410 with a blood alcohol concentration of more than 0.10 grams. Brahm’s conviction on that charge must therefore be reversed. Compare Williams v. State, 223 Ga. App. 209, 210 (2) (477 SE2d 367) (1996) (harmless error to admit document over objection without laying proper foundation because other evidence of guilt overwhelming).
Judgment reversed.
Beasley, J., and Senior Appellate Judge Harold R. Banke concur.