Ishola v. State

553 S.E.2d 346, 251 Ga. App. 355, 2001 Fulton County D. Rep. 2501, 2001 Ga. App. LEXIS 891

• Court: Court of Appeals of Georgia
• Decided: August 1, 2001
• Docket: A01A1131
• Status: Published

Opinion

Miller, Judge.

A jury found Olantunji Ishola guilty of driving with an alcohol concentration greater than 0.10 grams.¹ On appeal Ishola argues that the results of his Intoxilyzer 5000 test should have been excluded. We disagree and affirm.

Ishola argues that the officer who tested him discarded an invalid breath test and did not wait the required 20 minutes for observation before giving a subsequent test, rendering the results invalid and the test inadmissible. In support of this argument, Ishola points to the testimony of a chemist familiar with the Intoxilyzer 5000 who testified that the breath test was improperly administered because Ishola was not seated and constantly observed for 20 minutes to see whether he burped, belched, or regurgitated thereby contaminating the breath test.

The jury was not required to believe the chemist’s testimony regarding a 20-minute sit-down requirement.² Even if a 20-minute observation period is a requirement, the State showed that such requirement was satisfied.³ The officer testified that the 20-minute requirement was met in that he stopped Ishola at 3:10 a.m. and the breath test was administered at 3:36 a.m. Although the officer testified that there were probably one and a half minutes where he was securing Ishola’s vehicle and did not observe Ishola, “[t]he failure to continuously watch [Ishola] for 20 consecutive minutes prior to the breath test does not require exclusion of the test results.”⁴

Therefore, the trial court did not err in admitting the breath test results.

Judgment affirmed.

Andrews, P. J., and Eldridge, J., concur. Decided August 1, 2001 Reconsideration denied August 24, 2001. Spruell, Taylor & Associates, Billy L. Spruell, Melinda D. Taylor, for appellant. Gerald N. Blaney, Jr., Solicitor-General, Carole C. Korn, Jeffrey P. Kwiatkowski, Jonathan D. Aurelia, Assistant Solicitors-General, for appellee.

1 OCGA § 40-6-391 (a) (5).

2 It was for the jury to assess the credibility of the witnesses. Butler v. State, 273 Ga. 380, 382 (1) (541 SE2d 653) (2001).

3 See Klink v. State, 272 Ga. 605, 607 (2) (533 SE2d 92) (2000) (State complied with 20-minute requirement where defendant was in custody for over 20 minutes).

4 (Punctuation and footnote omitted.) Bagwell v. State, 248 Ga. App. 806, 808 (1) (547 SE2d 377) (2001).