Department of Public Safety v. Robinette

564 S.E.2d 726, 254 Ga. App. 884, 2002 Fulton County D. Rep. 926, 2002 Ga. App. LEXIS 337
Court of Appeals of Georgia·Decided March 13, 2002·No. A01A2030·Published·Cited by 1 cases

Opinion

Pope, Presiding Judge.

Following his DUI arrest, Mark Robinette requested a hearing on the administrative suspension of his driver’s license. An administrative law judge (“ALJ”) held an evidentiary hearing and then sustained the license suspension. Robinette filed a petition for judicial review with the superior court. The superior court reversed the ALJ’s ruling because the test result slip from the breath-testing device was not introduced into evidence at the administrative hearing. Pursuant to our grant of their application for a discretionary appeal, the Georgia Department of Public Safety (the “Department”) and its Commissioner, Colonel Sid Miles, appeal the judgment of the superior court. We affirm because the evidence did not show that Robinette’s breath test was properly administered.

The superior court sits as an appellate court when reviewing an ALJ’s ruling upholding a license suspension. See Miles v. Smith, 239 Ga. App. 641 (1) (521 SE2d 687) (1999). “In turn, in reviewing a superior court’s order in a case under the Administrative Procedure Act, our function is to determine whether the superior court has in its own final ruling committed an error of law. [Cit.]” (Punctuation omitted.) Miles v. Carr, 224 Ga. App. 247 (480 SE2d 282) (1997). The [885] ALJ’s ruling will be upheld if there was any evidence to support it. Miles v. Smith, 239 Ga. App. at 641.

Robinette’s driver’s license was suspended pursuant to OCGA § 40-5-67.1 (c), which provides for the suspension of the driver’s license of those persons whom an arresting officer reasonably believes to be driving under the influence in violation of OCGA § 40-6-391. The scope of an administrative license suspension hearing is limited to the specific issues listed in OCGA § 40-5-67.1 (g) (2). The relevant issues here included: (1) whether the arresting officer had reasonable grounds to believe Robinette was driving under the influence of alcohol and was lawfully placed under arrest for violating OCGA § 40-6-391 (see OCGA § 40-5-67.1 (g) (2) (A)); (2) whether, at the time of the request for a blood alcohol test, the arresting officer informed Robinette of his implied consent rights and the consequence of submitting or refusing to submit to the test (see OCGA § 40-5-67.1 (g) (2) (Q); and (3) whether the test results indicated an alcohol concentration of 0.10 grams or more (see OCGA § 40-5-67.1 (g) (2) (E)). OCGA § 40-5-67.1 (g) (2) (F) requires the consideration at the administrative hearing of

Whether the test or tests were properly administered by an individual possessing a valid permit issued by the Division of Forensic Sciences of the Georgia Bureau of Investigation on an instrument approved by the Division of Forensic Sciences or a test conducted by the Division of Forensic Sciences, including whether the machine at the time of the. test was operated with all its electronic and operating components prescribed by its manufacturer properly attached and in good working order, which shall be required. A copy of the operator’s permit showing that the operator has been trained on the particular type of instrument used and one of the original copies of the test results or, where the test is performed by the Division of Forensic Sciences, a copy of the crime lab report shall satisfy the requirements of this sub-paragraph.

The only witness at the administrative hearing was the Cobb County policeman who was the arresting officer. The transcript shows that on October 1, 1999, at 1:45 in the morning, the officer stopped Robinette for failing to maintain a lane while driving his car. The officer could smell alcohol on Robinette’s breath, and he admitted to recently drinking an alcoholic beverage. Robinette performed poorly on a number of field sobriety tests. Based on the foregoing, the officer placed Robinette under arrest for driving under the influence of alcohol and read to him the appropriate implied consent warning. [886] The officer took Robinette to the Cobb County jail, where he submitted to a breath test on the “Intoxilyzer 5000.” According to the oral testimony of the arresting officer, the testing device showed 0.131 grams percent alcohol. The arresting officer served Robinette with a notice of intent to suspend his driver’s license. Although neither the officer’s operating permit for the testing device nor the test result slip was admitted into evidence, the ALJ found that all the requirements for the suspension of Robinette’s driver’s license had been shown by the Department.

The superior court reversed the ruling of the ALJ because the evidence failed to satisfy the requirements of OCGA § 40-5-67.1 (g) (2) (F), noting that the arresting officer did not introduce a copy of the original test result slip. The Department argues that OCGA § 40-5-67.1 (g) (2) (F) does not establish an absolute requirement that the original test result slip be admitted into evidence. We agree. OCGA § 40-5-67.1 (g) (2) (F) is constructed of two sentences. The first sentence addresses what is required, which is to show that the chemical test was properly administered by a permitted individual on a machine in good working order. The second sentence provides that a copy of the operator’s permit and the copy of the original test results “shall satisfy” these requirements. But what is required is not the documents; it is the showing that the test was properly administered.

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Department of Public Safety v. Robinette, 564 S.E.2d 726, 254 Ga. App. 884, 2002 Fulton County D. Rep. 926, 2002 Ga. App. LEXIS 337 (Ga. Ct. App. 2002).

564 S.E.2d 726 (Department of Public Safety v. Robinette) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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