State v. HoltonState v. Holton
- Reporters:
- , ,
- Before:
- Pope
On November 27, 1983 Ron Robin Holton was observed driving on 1-285 northbound by a DeKalb County police officer. Holton was traveling at a high rate of speed and was weaving through traffic without using signals. Upon stopping the vehicle, the officer observed Holton’s eyes to be dilated and glassy. The officer also smelled alcoholic beverage upon Holton’s breath. Holton was placed under arrest and read the Georgia implied consent warning at the scene. He then stated to the officer that he had had “a couple of beers at the game.” He was transported to the DeKalb County Police Department where he was again advised of the implied consent warning. He agreed to take a breath test which was administered by a certified operator of intoximeter machines. The test was performed on an Intoximeter 3000 using methods approved by the Division of Forensic Sciences of the Georgia Bureau of Investigation. The result of the breath test was a blood alcohol level of .12 grams percent.
The State brings this appeal from the trial court’s grant of Holton’s motion in limine. Said order ruled inadmissible the results of the foregoing state-administered breath test. The trial court based its ruling upon the failure of the GBI’s Division of Forensic Sciences to comply with the Georgia Administrative Procedure Act (APA) by promulgating rules and regulations concerning chemical testing for alcohol in blood. Under
1. The State enumerates as error the trial court’s application of the APA to this case. The State first argues that the APA does not
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apply to
The State also contends that, even if DFS is governed by the APA, implementation of
2. Having determined the applicability of the APA, we turn to
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the State’s remaining contention, to wit: the promulgation of the implied consent rules by the Department of Public Safety is in substantial compliance with pertinent statutory requirements. We begin our analysis of this issue with an overview of the statutory histories of the Department of Public Safety and the implied consent law as presently codified at
The Executive Reorganization Act of 1972 changed the structure of the executive branch of state government and divided the functions
1
of the Department of Public Safety. A Board of Public Safety was created to “establish the general policy to be followed by the Department of Public Safety.” Ga. L. 1972, pp. 1015, 1028. The Department of Public Safety, a separate entity from the Board of Public Safety, was also created with its own commissioner.
In 1974 the Reorganization Act was amended by removing the Division of Investigation from the Department of Public Safety and making it a separate agency and department of state government known as the Georgia Bureau of Investigation. Ga. L. 1974, p. 109, § 2. Except for the policy-making functions retained by the Board of Public Safety, all functions of the Division of Investigation as set forth in the 1972 Act were transferred to the GBI. Id. Additionally, the 1974 amendment provided: “Unless inconsistent with this Act, any reference in Georgia laws to the State Crime Laboratory . . . means the Georgia Bureau of Investigation created by this Act.” Id. at 111. In 1980 the Reorganization Act was again amended by providing that the State Crime Laboratory be known as the Division of Forensic Sciences, one of the divisions which comprise the GBI. Ga. L. 1980, p. 497, § 1. This 1980 amendment further provided that all functions assigned to the State Crime Laboratory by the Georgia Post Mortem Examination Act and
“any other functions
of said State Crime Laboratory except policy-making functions transferred to the Board of Public Safety . . .” were transferred to the GBI and were to be carried out by DFS. (Emphasis supplied.) Id. Finally, the 1980 amendment also provided that “any reference in Georgia laws to the State Crime Laboratory means the Division of Forensic Sciences within the Georgia Bureau of Investigation.” Id. at 498. In 1983 the implied consent law,
Our view of the foregoing enactments is that the functions assigned to the State Crime Laboratory under the implied consent law were not transferred to the GBI until the 1980 amendment to the Reorganization Act. The Reorganization Act provides: “The department which succeeds to all or part of the functions of an agency under this Act other than an agency assigned to the department for administrative purposes, also succeeds to the rules, regulations, and orders of that agency and the power of that agency to make rules and regulations relating to the functions or parts of functions transferred. The rules, regulations, and orders of an agency in effect before the effective date of the provisions of this Act affecting the agency remain in effect until amended, repealed, superseded or nullified by proper authority or as otherwise provided by law.” Ga. L. 1972, pp. 1015, 1032. Thus, the rules of the State Crime Laboratory issued pursuant to the implied consent law and promulgated by the Department of
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Public Safety became the rules of the Division of Forensic Sciences of the GBI by operation of law in 1980. Although several amendments to these rules have been made since 1980, the rules continue to be filed under the auspices of the Department of Public Safety. We are offered no explanation as to why these “Department of Public Safety” rules have not been superseded by similar rules promulgated by the GBI. Holton argues that under these circumstances, if an individual is arrested for driving under the influence of alcohol and goes to the Code section governing the admissibility of his blood alcohol test,
In general, rules issued by a state agency in the absence of clear legislative authority are of no force and effect. See
Pope v. Cokinos,
231 Ga. 79 (1) (200 SE2d 275) (1973); Op. Att’y Gen. 71-158. See also
Todd v. State,
205 Ga. 363 (1) (53 SE2d 906) (1949). Nonetheless, “[a] substantial compliance with any statutory requirement, especially on the part of public officers, shall be deemed and held sufficient, and no proceeding shall be declared void for want of such compliance, unless expressly so provided by law.”
We are of the opinion that, while the failure of DFS to properly promulgate the implied consent rules under the auspices of the GBI may conceivably cause or have caused some difficulty or confusion, the publication of these rules by the Department of Public Safety has, *246 as a practical matter, not resulted in any appreciable lack of notice of these rules to those affected thereby. Clearly, Holton asserts no such lack of notice. We base our opinion in part upon the Department of Public Safety’s long history of responsibility for implementing the implied consent law, only recently assigned to the GBI. Moreover, the multitude of cases which have appeared before the appellate courts of this state since 1980 dealing with the implied consent law and the subject rules published by the Department of Public Safety disclose no apparent lack of notice of these rules. See, e.g., State v. Johnston, 249 Ga. 413 (3) (291 SE2d 543) (1982); State v. Strickman, 173 Ga. App. 1 (2) (325 SE2d 775) (1984); Channell v. State, 172 Ga. App. 156 (322 SE2d 356) (1984); Higginbotham v. State, 170 Ga. App. 80 (316 SE2d 181) (1984); Stewart v. State, 165 Ga. App. 62 (2) (299 SE2d 134) (1983); State v. Chumley, 164 Ga. App. 828 (5) (299 SE2d 564) (1982). Thus, although we do not approve of the subject state agencies’ failure to fully comply with the pertinent statutory requirements as set forth in this opinion, we conclude that the implied consent rules have been promulgated in substantial compliance with said requirements and, thus, are valid and effective against Holton. See also Cheely v. State of Ga., 251 Ga. 685 (1) (309 SE2d 128) (1983). We nevertheless encourage the GBI through its Division of Forensic Sciences to proceed with all deliberate speed to promulgate, and update, the implied consent rules in full compliance with the various statutes cited herein.
Judgment reversed.
Banke, P. J., and Benham, J., concur.
Notes
A “function” is defined by the Reorganization Act as “a duty, power, or program exercised by or assigned to an agency.” Ga. L. 1972, pp. 1015, 1018. This term is distinguished from “policy-making” which means “those functions related to establishing the general direction which programs of ah agency shall take.” Id. at 1019.