*1 46
plaintiff Equifax Services, West and co-defendant Credit Information cooperate discovery my matters, that, Inc. to on it is view the trial meting court abused its discretion out sanctions more even- handedly. proper judice disposition of the case sub is to vacate the dismissal and remand with directions to consider some lesser sanction. Judge Eldridge joins
I am authorized to state that in this dis- sent. 2, 1997
Decided December 19, 1997 Reconsideration denied December George appellant. Johnson, M. for Murphy, Powell, Goldstein, Hawkins, Frazer & James W. for
appellee. A97A1522. THE CALDWELLv. STATE.
(495 308) SE2d Beasley, Judge. driving Anna L. Caldwell was convicted of under the influence having grams in her blood an alcohol concentration of .10 or more driving within three hours § after 23, on October 1995. OCGA 40-6- (a) (a) (4), (5) redesignated § 391 OCGA 1996, 40-6-391 Ga. L. p. 1413. The sole enumeration of error relates to the admission in evi- prosecu- dence of the chemical test results. Caldwell maintains the lay tion failed to foundation under OCGA 40-6-392 (1) (A) Intoxilyzer to establish that the 5000 used to test her breath operating properly attempted was in that the foundation was based hearsay rights which violated her constitutional to confront wit- nesses. compliance regard, No provided certificate of in this in the form (a) in accordance with subsection “ laying introduced. ‘Certificates’ are not the exclusive means of foundation to admit alcohol State, test results.” Bazemore v. 225 Ga. (2) (484 673) (1997) (chemist
App.
gas
741, 745
operated
SE2d
who
device).
chromatograph
integrity
Although by
established
law cer-
self-authenticating
requirement
tificates
that
are
operated properly, proof
the intoximeter
of this fact
thus
also
Compare
be established
other evidence. Id. at 744.
Hobbs v.
(2) (480
330)
App.
(1997);
State, 224 Ga.
314
SE2d
Cullen v.
(2) (477
620)
App.
(1996);
223
223 Ga.
Kampplain,
Ga.
357
SE2d
State v.
143)
App.
(1996);
16
SE2d
Hunter,
State v.
221 Ga.
(1) (473
192) (1996).
Although Kampplain
left this
open, supra
it.
Bazemore resolved
issue
peri-
job
supervisor
is to conduct
area
Tackett’s
as
pursu-
5000s and to issue
odic
of or
did not conduct an
ant to OCGA 40-6-392
She
permitted
Caldwell, but she was
machine used for
see
printed by
testify
on certain documents
to
its most recent
based
*2
Trooper
inspection by
Webb, who was unavail-
testify.
able
486)
State,
v.
Based on a number of during quarterly inspection, Trooper gave its most recent Tackett her opinion properly by Trooper that a had certificate been issued Webb parts good had all of its connected and since machine working ically-generated reports automatically printouts hearsay are not rather mechan- order. The They
created the machine. by any person do not constitute statements or “the con- out-of-court party impediment court,” clusion of a third in Miller v. as was the not before (3) (472 74) (1996). if 266 Ga. Even they hearsay, they did constitute fell within the business record hearsay exception rule, as does the certificate based supra. any right Brown, on them. Caldwell was not denied to cross- printouts produced. examine the machine it She did thor- about oughly Trooper interpreted printouts Tackett, cross-examine who they reported. and described the tests which the certification and testified Tackett described that the acetone interference detection test on the machine is con- quarter The ducted in the first and third checks each quarter, test is done each with the additional mouth alcohol test the annually. quarters, second and fourth and the radio interference test frequency The of all these tests is in accordance with the rules of the suggestion. and the manufacturer’s Division of Forensic Sciences Records are maintained of the resulting agencies inspectors Troopers both involved and such as Tackett and Webb. inspection by Trooper conducted Webb had been on October year, separate the fourth of the aso acetone check printouts by Trooper
was not included in the reviewed Tackett. She testify expressly could not on the that an acetone check had been conducted although testimony sup- occasion, another her ports ongoing the inference that is an process. and cumulative (1) (A)
Paragraph of subsection of OCGA 40-6-392 states bodily that the machine on which the accused’s substance was tested operated operating must be one “which was with all its electronic and components prescribed by good working its manufacturer and in attached designates
order.” It further the Division of Forensic Investigation agency Sciences of the Bureau of as the approve satisfactory techniques per- “shall or methods ... to issue along requirements properly operating mits, with and maintain- ing testing certifying instruments, and to issue certificates requirements. instruments met have those . . .” urges showing Caldwell results, that the intoximeter test driving registered when tested soon after inadmissible because the .121, *3 she .139 and were
trooper testing who testified about the the machine did not know whether the acetone check had ever been change conducted on the machine. Caldwell would the law by requiring required by legislature more evidence than is the ensure intoximeter test results are valid.
Had there been interference, acetone the filters would detect printout part that and the would show that the “internal standards” diagnostic printout of the machine’s test “failed.” The showed that “passed” yearly sepa- the internal standards. The twice rate acetone interference detection test is a check on acetone in addi- diagnostic interfering tion to the test’s detection of acetone or other Consequently, testify, substances. the did, witness was able to as she operating components that the machine was with all of its attached (a) (1) good working required by § and in order, as OCGA 40-6-392 (A). necessary testify It was not for her to know or to that the secon- dary satisfactorily previous acetone test had been conducted the quarter. missing
Thus, there was anot element in the foundation needed for admission of the results of the test taken Caldwell. Were it quarterly year, ending otherwise, then all four certificates for a with showing testing the certificate close in time to the accused’s prerequisite test, would abe for admission of the accused’s test only sequential results. This would be so because all four only would show that not test also the acetone in were conducted test, and the radio test test, the mouth alcohol that It that “the certificate require provides
The law does not that. (1) of sub- paragraph . pertinent requirements . . shall (f). It refers 40-6-392 section of this Code section.” OCGA time” signed is “each prepared to the certificate expressly that, in no requirement the instrument is Id. There is inspected. in connec- addition, tests not done prove periodic at some time. The tion with the certification at issue were also done testing up leaves the and methods for machine techniques law sepa- The Division does not require Division of Forensic Sciences. test, separate acetone interference or for that matter a mouth rate an test, “[e]ach or radio interference to be conducted time alcohol approved breath-testing inspected.” instrument certificate, own, to assure single standing Yet a on its is sufficient case, testi- being the machine was That operating properly. in detail the same the certificate would have mony establishing thing shown, fashion, summarily shorthand is not deficient. admitted, the State properly proved evidence was (a) (1) 40-6-392 operating
machine was accordance with OCGA § (A) tested, when Caldwell was and it further that Caldwell proved “did have an alcohol concentration of 0.10 or more at a time grams within three hours after . . .” The of conviction is driving. judgment affirmed. Andrews, J., J., C. P. Smith and Judgment Birdsong, affirmed. JJ, J., J., concur. P. dissent.
Ruffin, McMurray, Eldridge, Presiding Judge, dissenting. McMurray, my lay In view the failed to the foundation prosécution (A) (a) (1) under OCGA 40-6-392 to establish that 5000 with which defendant Caldwell’s breath was tested was oper- ated with all its electronic and operating components prescribed its manufacturer attached and in order. good working Therefore, I dissent. respectfully compliance, provided by
No certificate of the form OCGA 40-§ *4 (a), 6-392 and as OCGA 40-6-392 was introduced required However, this case. the absence of the certificate is not dis- statutory since this Court has held that a failure to a positive provide always certificate for the test machine does not exclusion of require v. 743 744 test results. Bazemore Ga. 673). The State to foundation for attempted provide testimony of the results via the of State admission breath test Tackett, job periodic inspections whose it is to conduct Trooper 5000s and issue the certificates to Intoxilyzer provided pursuant Trooper Yet, Tackett had never conducted an inspection upon of nor even seen the Trooper permitted Instead, Tackett was to tes- defendant was tested. tify during printed based on certain documents its inspection by Trooper Webb, most recent who was not available testify. to
Trooper acknowledged procedures Tackett that she had learned from Bureau of to detect the performed periodically, taught the machine’s manufacturer and the both Investigation required ability a of the test machine’s
presence interfering acetone to of the substance was apparently Trooper
and Tackett had been performed year during this test was to be twice or every quarterly inspection Specifically, other of the machine. the ace- tone test of the interferant detector to be conducted on the first quarter inspection third and The fact that the conducted by Trooper during October, Webb had been in the fourth year, explains why the included in the Tackett had no the results of an acetone check were not
printouts by Trooper Trooper Thus, reviewed Tackett. knowledge as to whether an acetone check had ever question. been conducted on machine though Trooper Even the evidence elicited from Tackett concern- ing administratively inspection created scheme is somewhat incomplete, apparent it is that the 5000 was not to be working properly appropriate deemed to be for certification in passed the absence of test that the machine had the acetone check during preceding quarters. one of the In two the absence of such proper evidence, no foundation was laid for admission of the results of the test of defendant’s breath. multiple necessary
This does not mean that certificates are to create a foundation for the admission of an accused’s test results. testimony However, one must infer from Tackett’s inspection intoxilyzers ongoing of is an and cumulative quarterly inspection a nature such that each viewed in isolation does provide complete parts assurance that a machine has all of its working properly. and is dated This is the case because under the man-
procedure performed during quarterly some tests are each frequently. example, while others are conducted less For just only required during as the acetone test is the first and third quarter inspections, only required the mouth alcohol test is on the quarters. second annually. A and fourth radio interference check is conducted convey Thus, in order an assurance that the machine parts good working order, had all of its tification must by connected the cer- and was provided solely on more than
be based information quarterly inspection. the tests conducted each resulting Records are maintained of the certifi- *5 by by inspectors agencies such as cates both the involved and Troopers If the certification does not Tackett and Webb. past inspections these records of then involve some consideration of it indefinitely obtaining theoretically possible be to continue would example machine, a machine certification of a defective could not for pass still be certified in alter- the mouth alcohol test could nating quarters, half of each is for one something suggest prove
Therefore, I do not the State beyond any required tests. certification or conduct additional Instead, I from maintain that reasonable inferences should be drawn concerning inspection procedure adduced at trial evidence mandated the Division of Forensic Sciences of the Bureau unfortunately Secretary Investigation, published of Registry Regulations in the & of the Rules State Geor- gia might judicial important so that we take notice of this informa- fragmentary relying tion rather than on the sometimes evidence give meaning introduced at trial. In order to a reasonable by Trooper Tackett, scheme described I infer that a cer- would before pursuant issued, tificate tests mandated for the current pleted to OCGA 40-6-392 successfully must be com- relating and the records to a machine must show completion appropriate successful all of mandated tests within an interval of time as well as the correction of the machine. discovered defects in equal degree An must be to establish the foun- intoxilyzer dation for admission into evidence of the results accuracy absence of the certificate. To insure the of intox- ilyzer legislature provided require- results, the has the foundation (a) (1) charged ment contained in the Division formulating appropriate procedures. of Forensic Sciences with clearly rejected any Division of Forensic Sciences has notion of exclu- intoxilyzer inspect sive reliance on an itself via various programs mandating tests which involve the introduction of vari- foreign procedure ous substances to the machine. The mandated requires performed the acetone interferant test be semi- annually. There is no evidence that the acetone test had ever been performed on the 5000 used to test defendant’s breath. circumstances, Under these no foundation was laid for admission into evidence of the results of the test of defendant’s breath Intoxilyzer 5000. Judge Eldridge joins
I am authorized to state that in this dis- sent. 5, 1997 Decided December 19, 1997
Reconsideration December denied appellant. Thomas, J. for Thomas Evelyn Martin, Solicitor, Proctor, Solicitor,
Keith C. Assistant appellee.
A97A1543. et BAHADORIv. SIZZLER #1543 al. Presiding Judge. Pope, appeals Resa Bahadori from the decision of the State Board of Compensation, requiring Workers’ him to reimburse his former (Sizzler) employer, insurer, Sizzler #1543 and Sizzler’s National (National Union), Company Union Fire Insurance for workers’ com- pensation paid benefits to him. The basis for the award was that improperly compensation Bahadori received workers’ income bene- fits from Sizzler and National Union while he was a salaried employee company. of another July employed manager 22, 1989,
On while he was as a at Siz- zler, Bahadori was shot the shoulder area an armed rob- bery paid of the restaurant. Sizzler Bahadori’s claim for workers’ (a). compensation benefits. See OCGA 34-9-221 Bahadori When recovered, he moved to South Carolina and went to work for S & S stopped paying Cafeterias. Sizzler Bahadori benefits after he recov- ered and went to work for S & S. years later, 1992,
Two Bahadori filed a claim for benefits against alleging injury Sizzler, Sizzler, that due to his he was September through unable 8, 1992, to work for S & S from December paid early 12, 1992. Sizzler did not controvert this claim and it in 1993.
Later in Bahadori filed another claim for benefits based upon change seeking temporary disability condition, a total bene- September through fits for 1, 1993, 12, 1993, December and medical expenses. investigated Sizzler this claim and determined that although paid covering it had Bahadori benefits for his earlier claim September through actually working December Bahadori was receiving salary during for S & S and a that time. requested hearing
Thereafter, Sizzler to controvert Bahadori’s paid claim and to seek reimbursement of the income benefits from September through hearing, Prior December 1992. Bahadori resumption benefits, his withdrew 1993 claim for of income but his expenses overpayment claim for medical and Sizzler’s claim pending. remained