Pierce v. StatePierce v. State
- Reporters:
- , ,
- Before:
- Carley
Appellant appeals his conviction for driving under the influence.
1. Prior to trial, appellant filed a “Motion In Limine and Motion To Suppress Evidence.” The motions contested the admissibility of the results of a chemical test of appellant’s breath. A hearing was conducted on the motions, and appellant urged the exclusion of the evidence on the ground that, contrary to the mandate of
In
State v. Holton,
173 Ga. App. 241 (326 SE2d 235) (1984), this court held that promulgation of the rules and regulations by the Department of Public Safety constituted substantial compliance with the statutory requirements of
2. At the pre-trial hearing, the State offered no evidence to show that, at the time of appellant’s arrest, he had been informed of his right to an additional test. At the conclusion of the hearing, appellant urged that the State’s failure of proof in this regard required that the test results be excluded from admission into evidence at trial. The trial court refused to make a final ruling based upon the State’s failure of proof at the pre-trial hearing. Instead, the trial court reserved its decision and held that if the State did not produce evidence “at the trial of the case” that appellant had been properly informed of his rights, the test results would then be ruled inadmissible. On appeal, appellant asserts that the trial court erred by failing to rule that, because of the State’s failure of proof at the pre-trial hearing, the evidence would not be admissible at the subsequent trial.
In
State v. Johnston,
249 Ga. 413 (1) (291 SE2d 543) (1982), the Supreme Court held that a motion to suppress “ ‘furnishes a proce
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dural device for the protection of constitutional guarantees against unreasonable search and seizure
only,’
[Cit.]” (Emphasis supplied.) Allegations of “non-compliance with [
Under
State v. Johnston,
supra, the proper procedural device by which to obtain a pre-trial ruling on the admissibility of evidence based upon alleged violations of
State v. Johnston
does recognize that a trial court may elect to rule on a motion in limine prior to trial. As demonstrated by Division 1, the trial court in the instant case did hear and rule on certain allegations of inadmissibility which were based upon
There is no assertion that the State did not demonstrate, during the course of appellant’s actual trial, that there was compliance with
3. Appellant further contends that, as to the
However, the transcript demonstrates that at the outset of the pre-trial hearing in the instant case, the State clearly accepted the initial burden of laying the evidentiary foundation by calling the technician who had operated the machine at the time that appellant’s breath was tested. The technician gave detailed testimony, both as to his qualifications and the operation of the machine used to analyze appellant’s breath. This machine was identified by the technicians as being the “Intox 3000.” A copy of the technician’s valid certification card authorizing him to conduct breath analyses using the “Intoximeter Breathanalyzer Model 3000” was introduced into evidence. It was only after this evidence had been produced by the State that the trial court indicated that appellant had a burden to show that the test as conducted was not valid and that the results thereof were inadmissible. It is clear that in so doing, the trial court was merely noting that the State had met its initial burden of demonstrating the validity of the test and that the burden of coming forward with some evidence to the contrary had shifted to appellant. See generally In re V. T., 168 Ga. App. 472, 473 (309 SE2d 629) (1983). The trial court was correct in its determination that the State had met its initial burden of producing evidence sufficient to authorize a finding that the breath analysis had been conducted in a valid manner. See generally Helmly v. State, 142 Ga. App. 577 (236 SE2d 540) (1977); Higginbotham v. State, 170 Ga. App. 80 (316 SE2d 181) (1984); Clarke v. State, 170 Ga. App. 852 (319 SE2d 16) (1984). The burden of coming forward with evidence to counter the State’s foundation for the admission of the test results was not erroneously placed on appellant.
4. Appellant enumerates the overruling of his “best evidence” objection to the admission of a copy of the technician’s certificate. This argument was rejected in Thornberry v. State, 146 Ga. App. 827, 828 (2) (247 SE2d 495) (1978). See also Clarke v. State, supra.
Judgment affirmed.
Birdsong, P. J., and Beasley, J., concur.