Higginbotham v. State

Mar 2, 1984
67506
Reporters:
, ,
Before:
Carley
Carley, Judge.

Appellant appeals from her conviction of driving under the influence of alcohol. At trial, the evidence showed that appellant’s blood alcohol level at the time of the offense had been determined by means of ‍​‌‌‌​​​​‌‌‌​‌​​​‌‌​‌‌‌‌‌​​​​‌​​​‌​​​​​‌‌‌​​‌​​​‌​‌​‌‌​​‌‌‌‌​​​​‌​‌​‌​​‌‌​‌​​​‌‌‌‌‌‌‌​​​‌​​​‌​‌​‌‍a breath test administered on an Auto-Intoximeter. Appellant asserts that evidence as to the results of her blood test should have been stricken because the state failed to prove that the machine on which the test was administered had been approved by the Director of the Department of Public Safety.

“Although [OCGA § 40-6-392] does not impose any criteria for the testing equipment to be used, the Department of Public Safety Rules ‍​‌‌‌​​​​‌‌‌​‌​​​‌‌​‌‌‌‌‌​​​​‌​​​‌​​​​​‌‌‌​​‌​​​‌​‌​‌‌​​‌‌‌‌​​​​‌​‌​‌​​‌‌​‌​​​‌‌‌‌‌‌‌​​​‌​​​‌​‌​‌‍(Rule 570.9 — .06 (5)) require the use of specific equipment or approval by the director of the equipment used. In the absence of proof that the equipment utilized in the test is of the approved type or has the approval of the director, the test results ... are inadmissible. [Cits.]” State v. Johnston, 160 Ga. App. 71, 72 (286 SE2d 47) (1981), aff’d 249 Ga. 413 (291 SE2d 543) (1982). “However, as was ‍​‌‌‌​​​​‌‌‌​‌​​​‌‌​‌‌‌‌‌​​​​‌​​​‌​​​​​‌‌‌​​‌​​​‌​‌​‌‌​​‌‌‌‌​​​​‌​‌​‌​​‌‌​‌​​​‌‌‌‌‌‌‌​​​‌​​​‌​‌​‌‍noted in Willoughby v. State, 153 Ga. App. 434, 435 (265 SE2d 352) [1980], ‘Department of Public Safety Rule 570-9-.06 (5), effective October 31, 1979 . . . provides: “Breath tests other than the original screening test may be conducted on [an] . . . Auto-Intoximeter . . .” ’ . . . Consequently, a properly authenticated record or the testimony of the director is no longer necessary for tests administered on an Auto-Intoximeter.” Stewart v. State, 165 Ga. App. 62, 63 ‍​‌‌‌​​​​‌‌‌​‌​​​‌‌​‌‌‌‌‌​​​​‌​​​‌​​​​​‌‌‌​​‌​​​‌​‌​‌‌​​‌‌‌‌​​​​‌​‌​‌​​‌‌​‌​​​‌‌‌‌‌‌‌​​​‌​​​‌​‌​‌‍(299 SE2d 134) (1983).

In the instant case, the police officer who administered the breath *81test to appellant testified that he was certified to perform tests on the Auto-Intoximeter, and a copy of his certificate was admitted into evidence. “ ‘Since the director issued the permit for the operation of this particular machine, it may be inferred that its design was specifically approved by him. Accordingly, the results of the test were ‍​‌‌‌​​​​‌‌‌​‌​​​‌‌​‌‌‌‌‌​​​​‌​​​‌​​​​​‌‌‌​​‌​​​‌​‌​‌‌​​‌‌‌‌​​​​‌​‌​‌​​‌‌​‌​​​‌‌‌‌‌‌‌​​​‌​​​‌​‌​‌‍admissible.’ [Cit.]” Stewart v. State, supra at 63. The trial court did not err in refusing to strike the evidence.

Decided March 2, 1984. Denny C. Galis, for appellant. Ken L. Stula, Solicitor, for appellee.

Judgment affirmed.

Deen, P. J., and Banke, J., concur.