FOURTH DIVISION DILLARD, P. J., BROWN and PADGETT, JJ.
NOTICE: Motions for reconsideration must be physically received in our clerk’s office within ten days of the date of decision to be deemed timely filed. https://www.gaappeals.us/rules
May 13, 2024
In the Court of Appeals of Georgia A24A0705. THE STATE v. YOUN.
BROWN, Judge.
In this DUI case, the State appeals from the trial court’s grant of Seung Youn’s
motion to suppress one of his breath samples pursuant to OCGA § 40-6-392 (a) (1)
(B). For the reasons discussed below, we reverse the trial court’s ruling.
In reviewing the trial court’s grant of the motion to suppress, we apply the well-established principles that the trial court’s findings as to disputed facts will be upheld unless clearly erroneous and the trial court’s application of the law to undisputed facts is subject to de novo review. Moreover, we bear in mind that the State has the burden of proving that evidence challenged in a motion to suppress is admissible.
(Citations and punctuation omitted.) State v. de la Paz, ___ Ga. App. ___ (Case No.
A23A1769, decided March 8, 2024). See also Hynes v. State, 341 Ga. App. 500, 502–503 (801 SE2d 306) (2017). So viewed, the record shows that Youn was stopped
by Gwinnett County police at 12:55 a.m. on June 21, 2020, for failing to maintain his
lane. After taking a state-administered breath test, Youn was subsequently charged
with DUI per se, OCGA § 40-6-391 (a) (5), DUI less safe, OCGA § 40-6-391 (a) (1),
and failure to maintain lane, OCGA § 40-6-48. Youn filed a motion to suppress
pursuant to OCGA § 40-6-392 (a) (1) (B), seeking to suppress one of his breath
samples because the State allegedly exceeded the number of tests allowed under the
statute.
During a hearing on the motion to suppress, the State introduced into evidence
three printouts of the results from the Intoxilyzer 9000 machine, all dated June 21,
2020. The printouts were time-stamped 01:30, 01:37, and 01:58, respectively. The first
printout did not yield a BAC reading, noting at the bottom, “*Insufficient Sample —
Insufficient Sample. Subject did not provide a sufficient sample within the time
allotted.” The second printout, which includes a graph of “Breath Sample 1,” yielded
a BAC reading of 0.121; that printout noted at the bottom of the page, “Calibration
Check Out of Tolerance — Calibration Check Out of Tolerance. Result of calibration
check was outside of the defined tolerance.” The third printout, which includes two
2 graphs, one of “Breath Sample 1” and the other of “Breath Sample 2,” yielded BAC
readings of 0.121 and 0.114.
Based on the second and third printouts submitted by the State, Youn argued
that he submitted three sufficient and valid breath samples, and that the third sample
(reading 0.114) should be excluded from evidence pursuant to OCGA § 40-6-392 (a)
(1) (B), because once the State has two sufficient samples, its right to request further
breath tests under the statute ends.1 In opposing the motion to suppress, the State
argued that “a test [under the statute] is a set of two breath samples that actually give
a printed alcohol concentration analysis,” and that, therefore, only two adequate
breath samples were given as reflected in the third printout; the other two printouts
do not show adequate tests that count toward the “State’s two tests” because the first
printout reflected an insufficient sample and the second printout only reflected one
breath sample.
The trial court rejected the State’s argument and granted the motion to
suppress. Citing Davis v. State, 237 Ga. App. 817 (517 SE2d 87) (1999), the trial court
1 Youn did not challenge the admissibility of the first printout/test, agreeing with the trial court that because it shows an “insufficient sample,” “[i]t doesn’t count for the statute.” 3 ruled that the final breath sample which yielded a BAC of 0.114 should not be
admitted because the State already had obtained two sufficient samples (both of which
yielded a BAC of 0.121) before requesting the final sample. The State appeals from
this ruling, contending that the trial court erred in its interpretation of OCGA § 40-6-
392 (a) (1) (B). See OCGA § 5-7-1 (a) (4) (authorizing an immediate appeal by the
State from a pretrial order “excluding the results of any test for alcohol”).
“As this Court has held, OCGA § 40-6-392 governs the admissibility at trial of
evidence of the amount of alcohol in a person’s blood, urine, breath, or other bodily
substance, as determined by chemical analysis.” (Citation and punctuation omitted.)
Davis v. State, 286 Ga. App. 443, 444 (649 SE2d 568) (2007). Where the State selects
breath testing, the Code section provides that
two sequential breath samples shall be requested for the testing of alcohol concentration. For either or both of these sequential samples to be admissible in the state’s or plaintiff’s case-in-chief, the readings shall not differ from each other by an alcohol concentration of greater than 0.020 grams and the lower of the two results shall be determinative for accusation and indictment purposes and administrative license suspension purposes. No more than two sequential series of a total of two adequate breath samples each shall be requested by the state; provided, however, that after an initial test in which the instrument indicates an
4 adequate breath sample was given for analysis, any subsequent refusal to give additional breath samples shall not be construed as a refusal for purposes of suspension of a driver’s license under Code Sections 40-5-55 and 40-5-67.1. Notwithstanding the above, a refusal to give an adequate sample or samples on any subsequent breath, blood, urine, or other bodily substance test shall not affect the admissibility of the results of any prior samples. An adequate breath sample shall mean a breath sample sufficient to cause the breath-testing instrument to produce a printed alcohol concentration analysis.
(Emphasis supplied.) OCGA § 40-6-392 (a) (1) (B). See also Davis, 237 Ga. App. at
817-818 (1).
In Davis, the defendant was administered three breath tests. 237 Ga. App. at
817. The first two tests yielded results which were outside the parameters, although
breath samples2 sufficient to produce printed results were produced on both tests. Id.
The third test produced results within the parameters and indicated a BAC of 0.182.
Id. The defendant challenged the trial court’s denial of his motion to limine to exclude
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FOURTH DIVISION DILLARD, P. J., BROWN and PADGETT, JJ.
NOTICE: Motions for reconsideration must be physically received in our clerk’s office within ten days of the date of decision to be deemed timely filed. https://www.gaappeals.us/rules
May 13, 2024
In the Court of Appeals of Georgia A24A0705. THE STATE v. YOUN.
BROWN, Judge.
In this DUI case, the State appeals from the trial court’s grant of Seung Youn’s
motion to suppress one of his breath samples pursuant to OCGA § 40-6-392 (a) (1)
(B). For the reasons discussed below, we reverse the trial court’s ruling.
In reviewing the trial court’s grant of the motion to suppress, we apply the well-established principles that the trial court’s findings as to disputed facts will be upheld unless clearly erroneous and the trial court’s application of the law to undisputed facts is subject to de novo review. Moreover, we bear in mind that the State has the burden of proving that evidence challenged in a motion to suppress is admissible.
(Citations and punctuation omitted.) State v. de la Paz, ___ Ga. App. ___ (Case No.
A23A1769, decided March 8, 2024). See also Hynes v. State, 341 Ga. App. 500, 502–503 (801 SE2d 306) (2017). So viewed, the record shows that Youn was stopped
by Gwinnett County police at 12:55 a.m. on June 21, 2020, for failing to maintain his
lane. After taking a state-administered breath test, Youn was subsequently charged
with DUI per se, OCGA § 40-6-391 (a) (5), DUI less safe, OCGA § 40-6-391 (a) (1),
and failure to maintain lane, OCGA § 40-6-48. Youn filed a motion to suppress
pursuant to OCGA § 40-6-392 (a) (1) (B), seeking to suppress one of his breath
samples because the State allegedly exceeded the number of tests allowed under the
statute.
During a hearing on the motion to suppress, the State introduced into evidence
three printouts of the results from the Intoxilyzer 9000 machine, all dated June 21,
2020. The printouts were time-stamped 01:30, 01:37, and 01:58, respectively. The first
printout did not yield a BAC reading, noting at the bottom, “*Insufficient Sample —
Insufficient Sample. Subject did not provide a sufficient sample within the time
allotted.” The second printout, which includes a graph of “Breath Sample 1,” yielded
a BAC reading of 0.121; that printout noted at the bottom of the page, “Calibration
Check Out of Tolerance — Calibration Check Out of Tolerance. Result of calibration
check was outside of the defined tolerance.” The third printout, which includes two
2 graphs, one of “Breath Sample 1” and the other of “Breath Sample 2,” yielded BAC
readings of 0.121 and 0.114.
Based on the second and third printouts submitted by the State, Youn argued
that he submitted three sufficient and valid breath samples, and that the third sample
(reading 0.114) should be excluded from evidence pursuant to OCGA § 40-6-392 (a)
(1) (B), because once the State has two sufficient samples, its right to request further
breath tests under the statute ends.1 In opposing the motion to suppress, the State
argued that “a test [under the statute] is a set of two breath samples that actually give
a printed alcohol concentration analysis,” and that, therefore, only two adequate
breath samples were given as reflected in the third printout; the other two printouts
do not show adequate tests that count toward the “State’s two tests” because the first
printout reflected an insufficient sample and the second printout only reflected one
breath sample.
The trial court rejected the State’s argument and granted the motion to
suppress. Citing Davis v. State, 237 Ga. App. 817 (517 SE2d 87) (1999), the trial court
1 Youn did not challenge the admissibility of the first printout/test, agreeing with the trial court that because it shows an “insufficient sample,” “[i]t doesn’t count for the statute.” 3 ruled that the final breath sample which yielded a BAC of 0.114 should not be
admitted because the State already had obtained two sufficient samples (both of which
yielded a BAC of 0.121) before requesting the final sample. The State appeals from
this ruling, contending that the trial court erred in its interpretation of OCGA § 40-6-
392 (a) (1) (B). See OCGA § 5-7-1 (a) (4) (authorizing an immediate appeal by the
State from a pretrial order “excluding the results of any test for alcohol”).
“As this Court has held, OCGA § 40-6-392 governs the admissibility at trial of
evidence of the amount of alcohol in a person’s blood, urine, breath, or other bodily
substance, as determined by chemical analysis.” (Citation and punctuation omitted.)
Davis v. State, 286 Ga. App. 443, 444 (649 SE2d 568) (2007). Where the State selects
breath testing, the Code section provides that
two sequential breath samples shall be requested for the testing of alcohol concentration. For either or both of these sequential samples to be admissible in the state’s or plaintiff’s case-in-chief, the readings shall not differ from each other by an alcohol concentration of greater than 0.020 grams and the lower of the two results shall be determinative for accusation and indictment purposes and administrative license suspension purposes. No more than two sequential series of a total of two adequate breath samples each shall be requested by the state; provided, however, that after an initial test in which the instrument indicates an
4 adequate breath sample was given for analysis, any subsequent refusal to give additional breath samples shall not be construed as a refusal for purposes of suspension of a driver’s license under Code Sections 40-5-55 and 40-5-67.1. Notwithstanding the above, a refusal to give an adequate sample or samples on any subsequent breath, blood, urine, or other bodily substance test shall not affect the admissibility of the results of any prior samples. An adequate breath sample shall mean a breath sample sufficient to cause the breath-testing instrument to produce a printed alcohol concentration analysis.
(Emphasis supplied.) OCGA § 40-6-392 (a) (1) (B). See also Davis, 237 Ga. App. at
817-818 (1).
In Davis, the defendant was administered three breath tests. 237 Ga. App. at
817. The first two tests yielded results which were outside the parameters, although
breath samples2 sufficient to produce printed results were produced on both tests. Id.
The third test produced results within the parameters and indicated a BAC of 0.182.
Id. The defendant challenged the trial court’s denial of his motion to limine to exclude
the results of his breath test, contending that the State was only authorized to conduct
two breath tests. Id. at 817-818 (1). We reversed, concluding as follows:
2 We infer from the plural form that the first two tests administered to the defendant each yielded two breath samples. 5 The statute plainly defines an adequate breath sample as “a breath sample sufficient to cause the breath-testing instrument to produce a printed alcohol concentration analysis.” In this case it is undisputed that both the first and second tests administered to [the defendant] produced printed alcohol concentration analyses. The statute also clearly provides that no more than two tests, consisting of two breath samples each, can be requested by the state.
(Emphasis supplied.) Id. at 818 (1). Cf. State v. Kruzel, 261 Ga. App. 90, 91 (581 SE2d
711) (2003) (“[a]s we have held, OCGA § 40-6-392 (a) (1) (B), itself, clearly
contemplates the admission of both sequential test results”) (punctuation omitted),
citing Horne v. State, 237 Ga. App. 844, 846 (3) (517 SE2d 74) (1999).
Pretermitting the fact that the State never called a witness during the
suppression hearing to explain the message on the printout for the second test
(“Calibration Check Out of Tolerance — Calibration Check Out of Tolerance. Result
of calibration check was outside of the defined tolerance”), that test consisted of only
one breath sample.3 Because the statute permits the State to request “two sequential
series of a total of two adequate breath samples each,” the State in this case was
3 We make no ruling on the admissibility of the results of the second test as that issue is not before us. 6 permitted to request a third test, and the two resulting breath samples are admissible.
Accordingly, the trial court erred in suppressing the second breath sample produced
on the third test.
Judgment reversed. Dillard, P. J., and Padgett, J. concur.