Cullen v. State

Court of Appeals of Georgia

Cullen v. State

477 S.E.2d 620, 223 Ga. App. 356, 96 Fulton County D. Rep. 3745, 1996 Ga. App. LEXIS 1115

CourtCourt of Appeals of Georgia

DecidedOctober 16, 1996

DocketA96A1322

StatusPublished

Cited by5 cases

This text of 477 S.E.2d 620 (Cullen v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Cullen v. State, 477 S.E.2d 620, 223 Ga. App. 356, 96 Fulton County D. Rep. 3745, 1996 Ga. App. LEXIS 1115 (Ga. Ct. App. 1996).

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Opinion

Birdsong, Presiding Judge.

Brian C. Cullen appeals his conviction in October 1995 for driving under the influence of alcohol and failure to maintain lane in November 1994. He contends the trial court erred by denying his motion in limine seeking to suppress evidence of the results from the Intoxilyzer 5000 because the Intoxilyzer 5000 had not been properly approved for use in the state at the time his breath was measured, because a proper foundation was not laid that the machine was operating with all its original components and parts, and because a certificate of calibration and maintenance and a certificate authorizing the Tyrone police to use the machine were not introduced. Held:

1. Cullen’s allegation regarding the approval of the Intoxilyzer 5000 is controlled by Corner v. State, 223 Ga. App. 353 (477 SE2d 593). Accordingly, this enumeration of error is without merit.

*357 Decided October 16, 1996. Saia & Richardson, Joseph J. Saia, for appellant. William T. McBroom III, District Attorney, James E. Hardin, Assistant District Attorney, for appellee.

2. Cullen’s allegation that the trial court erred by admitting the results of the Intoxilyzer 5000 because the prosecution did not establish through the certificate required by ÓCGA § 40-6-392 (a) that the Intoxilyzer 5000 had all of its electronic and operating components attached and in working order, however, is controlled in his favor by State v. Hunter, 221 Ga. App. 837 (473 SE2d 192) and State v. Kampplain, 223 Ga. App. 16 (477 SE2d 143). Under OCGA § 40-6-392 (a) and (f) the prosecution was required to introduce the certificate of compliance required by OCGA § 40-6-392 (a). “The plain and unequivocal language of Section 5 of the April 1995 act makes the act retroactively applicable to all pending cases.” State v. Hunter, supra. Accordingly, Cullen’s conviction must be reversed and the case remanded to the trial court with instruction to grant Cullen’s motion to suppress.

3. In view of our disposition in Division 2, Cullen’s other enumerations are moot.

Judgment reversed.

Beasley, C. J., and Blackburn, J., concur.

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Birdsong, Presiding Judge.

Brian C. Cullen appeals his conviction in October 1995 for driving under the influence of alcohol and failure to maintain lane in November 1994. He contends the trial court erred by denying his motion in limine seeking to suppress evidence of the results from the Intoxilyzer 5000 because the Intoxilyzer 5000 had not been properly approved for use in the state at the time his breath was measured, because a proper foundation was not laid that the machine was operating with all its original components and parts, and because a certificate of calibration and maintenance and a certificate authorizing the Tyrone police to use the machine were not introduced. Held:

1. Cullen’s allegation regarding the approval of the Intoxilyzer 5000 is controlled by Corner v. State, 223 Ga. App. 353 (477 SE2d 593). Accordingly, this enumeration of error is without merit.

*357 Decided October 16, 1996. Saia & Richardson, Joseph J. Saia, for appellant. William T. McBroom III, District Attorney, James E. Hardin, Assistant District Attorney, for appellee.

2. Cullen’s allegation that the trial court erred by admitting the results of the Intoxilyzer 5000 because the prosecution did not establish through the certificate required by ÓCGA § 40-6-392 (a) that the Intoxilyzer 5000 had all of its electronic and operating components attached and in working order, however, is controlled in his favor by State v. Hunter, 221 Ga. App. 837 (473 SE2d 192) and State v. Kampplain, 223 Ga. App. 16 (477 SE2d 143). Under OCGA § 40-6-392 (a) and (f) the prosecution was required to introduce the certificate of compliance required by OCGA § 40-6-392 (a). “The plain and unequivocal language of Section 5 of the April 1995 act makes the act retroactively applicable to all pending cases.” State v. Hunter, supra. Accordingly, Cullen’s conviction must be reversed and the case remanded to the trial court with instruction to grant Cullen’s motion to suppress.

3. In view of our disposition in Division 2, Cullen’s other enumerations are moot.

Judgment reversed.

Beasley, C. J., and Blackburn, J., concur.

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477 S.E.2d 620, 223 Ga. App. 356, 96 Fulton County D. Rep. 3745, 1996 Ga. App. LEXIS 1115, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cullen-v-state-gactapp-1996.

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