164 Ga. App. 828 | Ga. Ct. App. | 1982
Appellee was arrested and was charged with driving under the influence. After the arrest, appellee submitted to an intoximeter test of his breath. The officer conducting the test possessed a permit issued by the State Crime Laboratory authorizing him to conduct such an intoximeter test. Appellee filed a motion to suppress the results of the breath test, raising Fourth Amendment grounds (lack of probable cause for his arrest) and, in addition, the state’s alleged non-compliance with Code Ann. § 68A-902.1 and the Rules and Regulations of the Department of Public Safety. The motion was originally considered and denied solely on the basis of the existence of probable cause for the arrest, the trial court declining to address the Code Ann. § 68A-902.1 issues in the context of a motion to suppress. This court — relying upon State v. Johnston, 160 Ga. App. 71 (286 SE2d 47) (1981) — reversed and remanded with direction that the trial court hear the Code Ann. § 68A-902.1 issues raised in appellee’s motion. Chumley v. State, 160 Ga. App. 619 (287 SE2d 630) (1981). But see State v. Johnston, 249 Ga. 413 (291 SE2d 543) (1982).
On remand, the trial court denied the motion on all grounds except that which sought the suppression of the results of the breath test because the permit issued by the State Crime Laboratory and held by the officer who had conducted the intoximeter analysis of appellee’s breath did not comply with the Rules and Regulations of the Department of Public Safety. The trial court reserved a ruling as to this ground of appellee’s motion until trial. At trial, the court announced that this sole remaining ground of the motion would be considered after jury selection. After the jury was sworn and had been excused to the jury room, the court heard arguments as to the remaining ground of appellee’s motion. Ruling that the permit held by the officer performing the test was invalid, the court granted the motion to suppress the results of the intoximeter test of appellee’s breath. The state appeals.
1. Code Ann. § 6-1001a (d) provides: “An appeal may be taken by and on behalf of the State of Georgia from the superior courts and such other courts from which a direct appeal is authorized to the
2. The trial court granted the remedy of suppression of evidence on the basis of its finding that the breath test was improperly administered. Although a motion to suppress is no longer a proper procedural device in dealing with such an issue, the order in this case may be treated as a ruling on a “motion in limine.” State v. Johnston, 249 Ga. 413, supra.
3. “The results of a breath test are not admissible over objection unless a proper foundation is laid.” State v. Johnston, 249 Ga. at 415, supra. The trial court did not err in requiring the state to prove that the breath test was administered properly.
4. The state argues that the trial court erred in ruling that the Department of Public Safety Rules and Regulations affect the procedure of issuing chemical analysis permits by the State Crime Laboratory. The state contends that the Department of Public Safety had no authority to pass any rules and regulations affecting the procedures of the State Crime Laboratory.
“It is settled law that issues concerning the validity and constitutionality of statutes and regulations must be raised at the first opportunity. Having failed to attack the rule in the lower court on the grounds asserted in this court, the grounds first asserted here will not be considered.” Shelton v. Housing Authority, 122 Ga. App. 535 (177 SE2d 832) (1970).
5. The state next argues that the permit held by the officer conducting the intoximeter test and issued by the State Crime Laboratory was in substantial compliance with the Rules and Regulations of the Department of Public Safety.
For purposes of clarification, we must analyze the permit issued
As noted above, only Department of Public Safety Rule 570-9-.05 (c) purports to require the intoximeter operator to perform breath tests “under the supervision of’ anyone. A review of the remainder of Chapter 570-9 of the Rules of Department of Public Safety reveals no such supervision requirement in connection with breath tests. The balance of the chapter appears to establish all of the requirements necessary for the conduct of breath tests, including: Qualifications necessary to become permitted; required training methods and techniques; and, continuing checks for proficiency. The only mention of supervision in the entire body of the chapter concerns blood analysis, not breath tests. In fact, Rule 570-9.06(6) specifically requires only that “[a] 11 breath tests other than the original screening test will be performed in accordance with Rule 570-9-.02(2) of these regulations.” Rule 570-9-.02(2), in turn,
Judgment reversed.