Caldwell v. StateCaldwell v. State
- Reporters:
- , , ,
- Before:
- Beasley
Lead Opinion
Anna L. Caldwell was convicted of driving under the influence for having in her blood an alcohol concentration of .10 grams or more within three hours after driving on October 23, 1995.
No certificate of compliance in this regard, in the form provided by
State Trooper Tackett’s job as area supervisor is to conduct periodic inspections of Intoxilyzer 5000s and to issue certificates pursuant to
The recent decision in Brown v. State, 268 Ga. 76 (485 SE2d 486) (1997), held that a certificate issued pursuant to
Based on a number of testing printouts produced by the machine during its most recent quarterly inspection, Trooper Tackett gave her opinion that a certificate had been properly issued by Trooper Webb since the machine had all of its parts connected and was in good working order. The printouts are not hearsay but rather the mechanically-generated reports automatically created by the machine. They do not constitute out-of-court statements by any person or “the conclusion of a third party not before the court,” as was the impediment in Miller v. State, 266 Ga. 850, 854 (3) (472 SE2d 74) (1996). Even if they did constitute hearsay, they fell within the business record exception to the hearsay rule, as does the statutory certificate based on them. Brown, supra. Caldwell was not denied any right to cross-examine the machine about the printouts it produced. She did thoroughly cross-examine Trooper Tackett, who interpreted the printouts and described the tests which they reported.
Trooper Tackett described the certification process and testified that the acetone interference detection test on the machine is conducted in the first and third quarter checks each year. The diagnostic test is done each quarter, with the additional mouth alcohol test the second and fourth quarters, and the radio interference test annually. The frequency of all these tests is in accordance with the rules of the Division of Forensic Sciences and the manufacturer’s suggestion. Records are maintained of the inspections and resulting certificates *48by both the agencies involved and by the inspectors such as Troopers Tackett and Webb.
The inspection conducted by Trooper Webb had been on October 4, during the fourth quarter of the year, so a separate acetone check was not included in the printouts reviewed by Trooper Tackett. She could not testify expressly that an acetone check had been conducted on the machine on another occasion, although her testimony supports the inference that inspection of the Intoxilyzer is an ongoing and cumulative process.
Paragraph (1) (A) of subsection (a) of
Caldwell urges that the intoximeter test results, showing that when tested soon after driving she registered .139 and .121, were inadmissible because the trooper who testified about the testing of the machine did not know whether the acetone check had ever been conducted on the machine. Caldwell would change the statutory law by requiring more evidence than is required by the legislature to ensure intoximeter test results are valid.
Had there been any acetone interference, the filters would detect that and the printout would show that the “internal standards” part of the machine’s diagnostic test “failed.” The printout showed that the machine “passed” the internal standards. The twice yearly separate acetone interference detection test is a check on acetone in addition to the diagnostic test’s detection of acetone or other interfering substances. Consequently, the witness was able to testify, as she did, that the machine was operating with all of its components attached and in good working order, as required by
Thus, there was not a missing element in the foundation needed for admission of the results of the test taken by Caldwell. Were it otherwise, then all four quarterly certificates for a year, ending with the certificate showing machine testing close in time to the accused’s test, would be a prerequisite for admission of the accused’s test results. This would be so because only all four sequential certificates would show that not only the diagnostic test but also the acetone *49test, the mouth alcohol test, and the radio test were conducted in that year.
The law does not require that. It provides that “the certificate . . . shall satisfy the pertinent requirements of paragraph (1) of subsection (a) of this Code section.”
The evidence was properly admitted, the State proved that the machine was operating in accordance with
Judgment affirmed.
Andrews, C. J., Birdsong, P. J., Smith and Ruffin, JJ, concur. McMurray, P. J., and Eldridge, J., dissent.
Dissenting Opinion
dissenting.
In my view the prosécution failed to lay the foundation required under
No certificate of compliance, in the form provided by
The State attempted to provide the required foundation for admission of the breath test results via the testimony of State Trooper Tackett, whose job it is to conduct periodic inspections of Intoxilyzer 5000s and issue the certificates provided pursuant to *50
Trooper Tackett acknowledged that the procedures she had learned from both the machine’s manufacturer and the Georgia Bureau of Investigation required that a test of the machine’s ability to detect the presence of the interfering substance acetone was to be performed periodically, and apparently Trooper Tackett had been taught that this test was to be performed twice a year or during every other quarterly inspection of the machine. Specifically, the acetone test of the interferant detector was to be conducted on the first and third quarter of the year. The fact that the inspection conducted by Trooper Webb had been in October, during the fourth quarter of the year, explains why the results of an acetone check were not included in the printouts reviewed by Trooper Tackett. Thus, Trooper Tackett had no knowledge as to whether an acetone check had ever been conducted on the machine in question.
Even though the evidence elicited from Trooper Tackett concerning the administratively created inspection scheme is somewhat incomplete, it is apparent that the Intoxilyzer 5000 was not to be deemed to be working properly and appropriate for certification in the absence of proof that the machine had passed the acetone check test during one of the two preceding quarters. In the absence of such evidence, no proper foundation was laid for admission of the results of the test of defendant’s breath.
This does not mean that multiple certificates are necessary to create a foundation for the admission of an accused’s test results. However, one must infer from Trooper Tackett’s testimony that inspection of the intoxilyzers is an ongoing and cumulative process of a nature such that each quarterly inspection viewed in isolation does not provide complete assurance that a machine has all of its parts and is working properly. This is the case because under the mandated procedure some tests are performed during each quarterly inspection while others are conducted less frequently. For example, just as the acetone test is only required during the first and third quarter inspections, the mouth alcohol test is only required on the second and fourth quarters. A radio interference check is conducted annually. Thus, in order to convey an assurance that the machine had all of its parts connected and was in good working order, the certification must be based on more information than is provided solely by the tests conducted during each quarterly inspection.
Records are maintained of the inspections and resulting certifi*51cates by both the agencies involved and by the inspectors such as Troopers Tackett and Webb. If the certification process does not involve some consideration of these records of past inspections then it would be theoretically possible to continue indefinitely obtaining certification of a defective machine, for example a machine which could not pass the mouth alcohol test could still be certified in alternating quarters, that is for one half of each year.
Therefore, I do not suggest that the State prove something beyond the required certification or conduct any additional tests. Instead, I maintain that reasonable inferences should be drawn from the evidence adduced at trial concerning the inspection procedure mandated by the Division of Forensic Sciences of the Georgia Bureau of Investigation, but unfortunately not published by the Secretary of State in the Registry of the Rules & Regulations of the State of Georgia so that we might take judicial notice of this important information rather than relying on the sometimes fragmentary evidence introduced at trial. In order to give a reasonable meaning to the scheme described by Trooper Tackett, I would infer that before a certificate pursuant to
An equal degree of proof must be required to establish the foundation for admission into evidence of the intoxilyzer results in the absence of the statutory certificate. To insure the accuracy of intoxilyzer results, the legislature has provided the foundation requirement contained in
I am authorized to state that Judge Eldridge joins in this dissent.