Channell v. State

322 S.E.2d 356, 172 Ga. App. 156, 1984 Ga. App. LEXIS 2434

• Court: Court of Appeals of Georgia
• Decided: September 19, 1984
• Docket: 68711
• Status: Published

Opinions

Banke, Presiding Judge.

On appeal from her conviction of driving under the influence of alcohol, the appellant contends that the trial court erred in allowing into evidence testimony to the effect that she had failed to pass an “alka-sensor” roadside sobriety test administered to her at the scene of her arrest.

The appellant was detained after her vehicle was observed weaving across the centerline of the roadway during the early morning hours of March 13, 1983. The arresting officer testified that he could smell a strong odor of alcoholic beverage on the appellant’s person and breath, that she was unsteady on her feet and that her speech was slurred and hard to understand. The officer was also permitted to testify, over objection, that he administered a roadside sobriety test to the appellant, which she failed to pass. The officer testified on cross-examination that this was an “alka-sensor (sic) field sobriety test.” It does not appear that any other type of blood-alcohol test was administered to the appellant.

The appellant’s objection to the testimony regarding the “alkasensor” test was based on the State’s failure to show that the test had been approved by the Georgia Department of Public Safety. Although the State’s attorney informed the court, in response to the objection, that “the Rules and Regulations of the Department of Public Safety, which I have a certified copy of, . . . so designate it as the test that is mandated by the state for on-the-roadside sobriety tests,” no such rules and regulations were introduced into evidence or otherwise made a part of the record.

Testifying in her own behalf, the appellant admitted that she had consumed a few beers on the night in question and that it was possible she had crossed over the centerline in the manner described by the officer. She maintained, however, that her erratic driving was due not to intoxication but to the fact that she was suffering from a painful uterus infection for which she had taken a pain medication. Held:

OCGA § 40-6-392 (a) (1) provides that, to be admissible as evidence, the results of a blood-alcohol test “shall have been performed according to methods approved by the Division of Forensic Sciences of the Georgia Bureau of Investigation and by an individual possessing a valid permit issued by the Division of Forensic Sciences for this purpose.” Pursuant to Rule 570-9-.06 (3) of the Rules of the Department of Public Safety, as reported in the Official Compilation of the Rules and Regulations of the State of Georgia (1983 Revision), an initial alcohol screening test administered to a suspect at the scene of a D.U.I. investigation for the purpose of determining the existence of probable cause for an arrest, “shall be a breath test and will utilize a device of a design approved by the Director of the State Crime Laboratory.” In the absence of proof of compliance with such regulations, it has been held that the results of a blood-alcohol test are inadmissible. See State v. Johnston, 160 Ga. App. 71, 72 (286 SE2d 47) (1981), aff’d 249 Ga. 413 (291 SE2d 543) (1982).

Decided September 19, 1984. Howard Tate Scott, for appellant. Ken Stula, Solicitor, Kent Lawrence, Assistant Solicitor, for appellee.

Because the required foundation was not laid in the case before us, we hold that the trial court erred in admitting the officer’s testimony that the appellant “failed” the roadside sobriety test which he had administered to her. This court’s decision in Hunter v. State, 143 Ga. App. 541, 543 (5) (239 SE2d 212) (1977), is not authority for a contrary result. In the first place, the initial screening test at issue in that case was merely a “balloon” test designed to confirm the presence of alcohol in the driver’s body systems rather than to test for sobriety. In the second place, it does not appear that any rules regarding the administration of screening tests had been promulgated by the Department of Public Safety at the time that decision was rendered. Finally, the admission of the screening test results in that case was merely cumulative of the results of an intoximeter test which had been administered to the defendant, showing his blood-alcohol content to be 0.16 percent.

Judgment reversed.

McMurray, C. J., Quillian, P. J., Birdsong, Carley, Sognier, and Benham, JJ., concur. Deen, P. J., and Pope, J., dissent.