Lattarulo v. StateLattarulo v. State
- Reporters:
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- Before:
- Clarke
This is аn appeal from a conviction for driving under the influence of alcohol. Appellant raises several constitutional issues and other alleged errors in the trial of her case. We find no errоr and affirm the conviction.
Carrie Angela Lattarulo was stopped for speeding. When she emerged from her car, the arresting officer noticed that she was un- j steady on her feet, that her speеch was slurred, her breath smelled of j alcohol, her clothing was disarranged, and her face was flushed. The officer also observed four or five empty beer bottles on the front floorboard of the car. A breathalyzer test given about an hour after she was stopped yielded a .19 blood/alcohol concentration result. Lattarulo was arrested and convicted
1. Lattarulo first contends that
In
Lester v. State,
253 Ga. 235 (320 SE2d 142) (1984), we upheld the constitutionality of
We now hold that the provision challenged here, although it is worded in terms of a presumption, actually has the effect of defining the level of blood-alcohol that is sufficient to permit an inference that the driver is “under the influence.” It does not create a burden-shifting presumption of guilt.
The challеnged provisions do not relieve the state of its burden of proving that the accused was “under the influence” and was driving. They do not prevent the accused from introducing any evidence to demonstratе that the blood-alcohol test was inaccurate or that he did not commit the offense. Further, precedents of the Court of Appeals have established that the statute may not be charged tо the jury using the word “presumption.” Simon v. State, 182 Ga. App. 210 (355 SE2d 120) (1987); Peters v. State, 175 Ga. App. 463 (333 SE2d 436) (1985). Under these precedents, the jury may not be instructed that the blood-alcohol level creates a presumption of guilt. Id. Therefore, we conclude that the challenged provisions do not create an unconstitutional presumption.
2. Lattarulo next argues that the statutory scheme is unconstitutional because it does not apprise her of the “nature and cаuse of the accusation against her” in violation of the due process and equal protection clauses of the U. S. Constitution. We find no merit in these arguments. The statute as recently amended is no mоre vague or indefinite than it was when we held that it passed constitutional muster in Cook v. State, 220 Ga. 463 (139 SE2d 383) (1964) and in Cargile v. State, 244 Ga. 871 (262 SE2d 87) (1979). Indeed, the present statute is even more definite than its predecessors. We find no constitutional infirmity.
3. Lattarulo next asserts that thе results of a breathalyzer test carried out on an Intoximeter 3000 machine should be excluded from evidence because they have not been shown to be scientifically reliable.
■ In Harper v. State, 249 Ga. 519, 525 (292 SE2d 389) (1982), we held that the test for admissibility of novel scientific evidence is whether the procedure or technique “has reached a scientific stage of verifiable certainty, or in the words of Professor Irving Younger, whether the рrocedure ‘rests on the laws of nature.’ ” We went on to say that “[ojnce a procedure has been recognized in a substantial number of courts, a trial judge may judicially notice, without receiving evidence, that the procedure has been established with verifiable certainty, or that it rests upon the laws of nature.” Id. at 526. Further, in Caldwell v. State, 260 Ga. 278 (393 SE2d 436) (1990), we made clear that the trial court need not exclude scientific evidеnce simply because it bears some possibility of error. “No procedures are infallible.” Id. at 287.
Under the standards enunciated in these cases, the results of breathalyzer tests are clearly admissiblе. The breathalyzer is hardly “novel” scientific evidence. Its acceptance is almost as widespread as radar or fingerprints. See, e.g., State v. Hartwig, 732 P2d 339 (Idaho App. 1987); State v. Miles, 349 NW2d 739 (Wis. App. 1984); Hamann v. State, 565 A2d 924 (Del. 1989); State v. Jordan, 575 A2d 309 (Me. 1990); Layton City v. Watson, 733 P2d 499 (Utah 1987). (There is universal acceptance of the rеliability of breathalyzer evidence.) The Intoximeter 3000, the type of breathalyzer machine used in this case, is used, at a minimum, in Alaska, Florida, Georgia, Idaho, New Hampshire, New York, Tennessee, Wisconsin, Wyoming, аnd country-wide in England. Its characteristics, theory, operation, and scientific acceptability have been discussed in numerous judicial opinions. See particularly People v. Jones, 118 Misc2d 687, 461 NYS2d 962 (1983).
Further, the expert testimony introduced by Lattarulo does not indicate that the Intoximeter 3000 test is not based on sound scientific theory, rather it indicates only that the test has some margin for error or may give an erroneous result under certаin circumstances. As we noted above, no procedure is infallible. An accused may always introduce evidence of the possibility of error or circumstances that might have caused the machine to malfunction. Such evidence would relate to the weight rather than the admissibility of breathalyzer results. Moreover, the legislature has by statute created procedural safeguards to minimize the рossibility of erroneous test results. Under
In sum, we hold that trial courts may take judicial notice that the Intoximeter 3000 machine test results are based on accepted scientific theory or “rest upon the laws of nature”; and, when thе statutory requirements for admissibility are met, the results may be admitted into evidence without expert testimony regarding the scientific theory behind the operation of the test.
4. Appellant next argues that the results of the breath test should have been excluded because it was not conducted in accordance with methods properly approved by the Division of Forensic Sciences. Appellаnt argues that the Intoximeter 3000 has not been properly approved because the Division of Forensic Sciences did not comply with the Administrative Procedure Act in approving the currently used version of the Intoximeter 3000 as modified by the disengagement of the “Taguchi cell,” a device that measures acetone and other substances that might interfere with the test result. This argument is without merit.
The record demonstrates that in 1984 it was determined within the Department of Forensic Sciences that the Taguchi cell affected only aberrant cases and was not worth the time and effort necessary to
5. Lattarulo next argues that the trial court erred in failing to quash the speeding citation and the driving under the influence accusation. We have reviewed the record and conclude that the forms used were in substantial compliance with the rules of the Department of Public Safety and state statutes. Any deficiency in the accusation or citation was purely technical and did not work to deprive the appellant of any significant right. We find no error in the trial court’s denial of the motions to quash.
6. We have reviеwed Lattarulo’s claim that the trial court erred in charging the jury with the language of
7. Finally, Lattarulo contends that the court should have granted а directed verdict in her favor. We disagree. The evidence adduced at trial was certainly sufficient to support a verdict of guilty beyond a reasonable doubt on each offense charged. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).
Judgment affirmed.
All the Justices concur.