634 S.E.2d 883 | Ga. Ct. App. | 2006
This is the second appearance of this DUI case before this Court. In State v. Palmaka
Following our reversal of Palmaka’s motion to suppress the results of her breath test, the case proceeded to a bench trial. The parties stipulated that the test was administered in compliance with OCGA § 40-6-392 (a) (1) (A). The test results were then admitted into evidence. They reflect that two breath samples were obtained from Palmaka; the results were 0.116 and 0.120, respectively. The former officer
The court adjudicated Palmaka guilty of violating OCGA § 40-6-391 (a) (5), which, prior to its amendment in 2001, prohibited having an alcohol concentration of 0.10 grains or more within three hours after being in actual physical control of a moving vehicle. The court gave weight and credit to the state-administered breath test results based on testimony that the small margin between the two samples was a strong indicator that no residual mouth alcohol contaminated the results.
Palmaka filed a motion for a new trial. In an amended motion, Palmaka argued that Rule (12) (b) violated the due process rights of citizens arrested for DUI in that it eliminated meaningful procedures for conducting breath tests. The court denied the motion, ruling that the elimination of “administrative, procedural, and/or clerical steps performed in conducting a test” from the approved methods for testing did not create a system which eliminated safeguards for the accuracy and reliability of the tests, in violation of the Due Process Clause of either the Fifth Amendment to the United States Constitution or Ga. Const, of 1983, Art. I, Sec. I, Par. I. Palmaka appealed to the Supreme Court, which transferred the appeal to this Court, stating in its order that the case did not fall within its jurisdiction because it does not raise any issue regarding the constitutionality of “a law, ordinance, or constitutional provision.”
In her appellate brief, Palmaka concedes that she raised the constitutional issues for the first time in an amended motion for new trial. “It is settled law that issues concerning the validity and constitutionality of statutes and regulations must be raised at the first opportunity.”
In addition, because the regulation at issue was duly promulgated under the APA, Palmaka had an alternative remedy. “As an allegedly aggrieved individual, [Palmaka] had an available administrative remedy and could have contested the validity of the rules or procedures at issue by filing an action for a declaratory judgment. OCGA§ 50-13-10. See also OCGA § 50-13-19.”
Finally, even if the constitutional challenge had been timely raised, we would reject it. Palmaka asserts that the absence of procedures which must be followed in the performance of the testing “renders the entire testing system vague and in violation of basic [d]ue [p]rocess protections.” The only authority cited in support of this sweeping proposition is Botts v. State,
Moreover, Palmaka has failed to demonstrate that the DFS eliminated meaningful procedures for conducting breath tests when it promulgated Rule (12) (b). The rule states only that “[a]dministrative, procedural, and/or clerical steps performed in conducting a test shall not constitute a part of the approved method of analysis.” Other requirements predating this amendment remain; namely, that the test must be performed on an Intoxilyzer 5000 manufactured by CMI, Inc.; that the operator must have a valid permit, which must be displayed conspicuously where the test is performed or available for display upon request; and that the machine must be checked periodically for calibration and operation.
Palmaka’s contentions are similar to those we rejected in Dougherty v. State.
Judgment affirmed.
266 Ga. App. 595 (597 SE2d 630) (2004).
Id. at 597.
Id.
240 Ga. App. 329, 331 (3), n. 1 (523 SE2d 395) (1999).
(Punctuation omitted.) Palmaka I, supra, citing Rule (12) (b).
259 Ga. App. 603 (577 SE2d 812) (2003).
Id. at 604.
The transcript reflects that the witness has left the police force and now testifies as an expert for defense attorneys, including Palmaka’s attorney.
Ga. Const. of 1983, Art. VI, Sec. VI, Par. II.
OCGA § 50-13-1 et seq.
(Punctuation omitted.) State v. Chumley, 164 Ga. App. 828, 829 (4) (299 SE2d 564) (1982) (Department of Public Safety rules and regulations), citing Shelton v. Housing Auth. of the City of Atlanta, 122 Ga. App. 535-536 (4) (177 SE2d 832) (1970) (superior court rule).
Kolokouris v. State, 271 Ga. 597 (1) (523 SE2d 311) (1999); Verlangieri v. State, 273 Ga.
Rowell v. State, 229 Ga. App. 397, 398 (1) (a) (494 SE2d 5) (1997) (recognizing Ga. Comp. R. & Regs. r. 92-3-.06 as embodying methods for breath tests approved by the DFS).
278 Ga. 538 (604 SE2d 512) (2004).
Id. at 539-540.
See Ga. Comp. R. & Regs. r. 92-3-.06 (5), (6), (12) (a).
See Ga. Comp. R. & Regs. r. 92-3-.02 (2) (e); r. 92-3-.06 (12) (a) (2).
259 Ga. App. 618 (578 SE2d 256) (2003).
Id. at 620-621 (1) (c).
Id. at 621 (1) (c).
Id.
(Footnote omitted.) Id.