Georgia DUI Attorney Motion to Suppress Breath Test - Inadequate DUI Regulations by

Allen M. Trapp, Jr.
P.O. Box 2206     Georgia Bar No. 715535
Carrollton, Ga. 30112
(770) 830-8560



v.      Docket No. __________________________


                                   BRIEF IN SUPPORT OF MOTION IN LIMINE

1. The Constitutional limitations of evidentiary shortcut statutes.
Scientific evidence is outside the knowledge of the average juror, and oftentimes, the average judge.  As such, a scientific test result of any kind may not be admitted into evidence without preliminary proof that it sheds some light on the issues in the case, and that a valid test was run.  Georgia courts have become fairly familiar with breathalyzers, and there are a lot of DUI cases, so the Georgia legislature enacted O.C.G.A. § 40-6-392 to eliminate the need for lengthy scientific foundations at trial in DUI cases by allowing the State to use certain shortcuts. 
First, the state need not prove the validity (i.e., admissibility) of a breath test result if the breath machine is a device approved by the Georgia Bureau of Investigation / Division of Forensic Sciences.  O.C.G.A. §40-6-392(a)(1)(A)
Second, the state need not prove that the machine was in good working order at the time of the test if there are inspection certificates showing routine inspections by a state trooper.  O.C.G.A. §40-6-392(a)(1)(A)
Third, the state need not prove that their Intoxilyzer operator was properly trained and operated the test according to his training if the operator is able to produce a permit from the GBI/DFS certifying his competence.  O.C.G.A. §40-6-392(a)(1)(A)
Finally, in blood test cases, the state need not prove that the phlebotomist was "qualified" if the state can produce a DHR or Secretary of State license or certification as a trained health care professional.
These shortcuts mean shorter, more efficient trials.  In most cases, the defendant's right to confront evidence against him is also not prejudiced.  The Constitutional level problem, however, is that the State has the entire burden of proof in criminal cases, and these shortcuts eliminate an evidentiary foundation that is normally required. 
The Constitution prohibits any statutory lessening of the State's burden of proof in a criminal case.  It also requires that the defendant have the right to fully confront evidence against him, including scientific tests; in DUI cases, the defendant has no right to inspect the machine himself at the time of testing.  He has no right to have counsel present to witness the test.  Post-arrest inspections of the machine and in-court demonstrations have been ruled irrelevant.  Meaningful regulations ensuring the accuracy of the machine are necessary because the accused driver has no right to independent calibration or inspection.
Shortcut statutes do not offend the confrontation clause if the defendant's rights are somehow preserved or protected by statute.  In Miller v State, 266 Ga. 850, 472 S.E.2d 74 (1996), the Georgia Supreme Court struck a shortcut statute used in drug cases that permitted the state to produce an affidavit from the crime lab in lieu of a live toxicologist.  The court pointed out that other states had such statutes, but they contained provisions allowing the defense lawyer to demand the witness's presence.  The provision for a demand to cross-examine the witness made these out of state statutes constitutional.
In OCGA § 40-6-392, the legislature tried to protect the defendant's confrontation rights by requiring the GBI/DFS to approve "satisfactory techniques or methods" to ascertain [1] the qualifications and [2] competence of individuals to conduct analyses and to [3] issue permits, along with requirements for properly [4] operating and [5] maintaining any testing instruments, and [6] to issue certificates certifying that instruments have met those requirements, which certificates and permits shall be subject to termination or revocation the discretion of the Division of Forensic Sciences.
Unfortunately, the GBI/DFS has done only a half-hearted job at approving these six distinct techniques and methods.  The appellate courts of our state have repeatedly chastised them for this.  State v. Holton, 173 Ga.App. 241, 326 S.E.2d 235 (1984)("[W]e do not approve of the [GBI/DFS's] failure to fully comply with the pertinent statutory requirements. . . . [We] encourage the GBI through its Division of Forensic Sciences to proceed with all deliberate speed to promulgate, and update, the implied consent rules in full compliance with the [APA]." emphasis in original), cited in State v Corner, 223 Ga.App. 353, 477 S.E.2d 593 (1996);  State v. Cooper, 229 Ga.App. 97, 493 S.E.2d 1 (1998)("The GBI is strongly advised to include all approved methods of testing and operating procedures in a clear publication and specifically comply with the requirements of OCGA 40-6-392 and the Administrative Procedure Act, to avoid forcing the state to litigate the continuously the validity of the GBI/DFS test methods under the APA.") 
Going through what the statute requires, the GBI/DFS has not approved satisfactory techniques or methods to ascertain the qualifications or competence of individuals conducting breath analyses.  The current rules require only that the applicant be over 20, a US citizen, a Georgia resident or employed in the state, and certify "satisfactory completion of a course in breath analysis conducted under the auspices of the DFS."  The applicant must also not have been convicted of a crime involving moral turpitude.  Ga. Admin. Code §92-3-.02(2)  These methods of ascertaining competence and qualifications fall short of guaranteeing that the permit holder will operate the machine correctly.  They do not require that the applicant have any training in the approved machine (Intoxilyzer 5000).  They do not define "satisfactory completion" with regard to the training course.  "Satisfactory completion" does not require a demonstration of skill, just the ability to sit through the class. 
The GBI/DFS has not approved satisfactory techniques or methods to issue permits.  The provisions setting forth the approved form for permits has been repealed.  Ga. Admin. Code §92-3-.05(a)(b) and (c).  Applicants are required to provide their name, address, employer's address, birthplace, birthdate, current date, and "responses to all questions or requests for information in the application."  Ga. Admin. Code §92-3-.03(2)(a) - (g).  This self-serving rule does not require that an applicant provide any particular information about his qualifications or competence.  As such, it does nothing to ensure that Intoxilyzer tests run by the permit holder will be conducted and interpreted correctly.  There are open-ended rules regarding the revocation of permits; a permit holder who violates the rules and regulations of the GBI might get his permit revoked after a private hearing before the Director, DFS or whoever he designates.  Ga. Admin Code § 92-3-.08  As shown herein, there are no operating rules for the permit holder to violate.  At best, there are rules, but they are known only to the Director, DFS.
The GBI/DFS has not approved satisfactory requirements for properly operating the breathalyzer.  The only operating instructions are in the "Intoxilyzer 5000 Georgia Operator's Training Manual," and the Court of Appeals has recently ruled that the content of the operator's manual are not part of the statutorily mandated "approved methods."  One of the published rules of the DFS states:
"The methods approved by the DFS for conducting an evidential breath alcohol analysis shall consist of the following:  (1) the analysis shall be conducted on an Intoxilyzer 5000 manufactured by CMI, Inc., except as otherwise provided in Rule 92-3-.06(5);  (2) the analysis shall be performed by an individual holding a valid permit, in accordance with Rule 92-3-.02(2); and  (3) the testing instrument shall have been checked periodically for calibration and operation, in accordance with Rule 92-3-.06(8)(a); (b) Administrative, procedural, and/or clerical steps performed in conducting a test shall not constitute a part of the approved method of analysis."  Ga. Admin. Code §92-3-.06(12)(a), (b).
By enacting self-serving, open-ended rules, the DFS has enacted no rules at all. 
"Satisfactory" techniques and methods would have to include binding regulations on the proper way to operate the machine, a mandatory maintenance schedule, a mandatory calibration procedure, standards for passing or failing calibration, and specific conditions under which a machine will be retired from service.  The rules as they stand do nothing to ensure the accuracy of breath tests; the DFS is permitted to operate entirely in the dark.  The defendant is forced to accept their bald assertion that the machine was in good working order on the night of the arrest.  There is no system in place to guarantee it, nor is there any system in place to ensure that all the parts are attached to the machine and in good working order.
The final sentence regarding prescribed parts being attached is meaningless.  There is no list of electronic or operating components prescribed by CMI, Inc. anywhere in the rules.  There is no protocol for properly determining if the parts in question are attached.  As it stands, a visual estimate is sufficient.  "Good working order" is not defined; there are no tolerances within which the machine must perform to stay in service.  There is no procedure for testing the machine' ability to prevent false positives due to mouth alcohol, interfering substances, Radio Frequency Interference, and physiological anomalies in the subject.  All of this is necessary to give teeth to this provision and lawfully permit the state to slip half of the required foundation for the admission of scientific evidence. 2.  The GBI/DFS' failure to promulgate enabling rules renders the shortcut statute unconstitutional and also renders the breath test result in this case inadmissible because of the simple failure to promulgate approved testing methods.  Furthermore, to the extent statutory or case law purports to dispense with proof of the content of the approved methods or compliance therewith, said statutory and case law deny the Defendant his right to due process of law.
Appellate courts in other states have addressed similar situations and found due process violations.  Those states subsequently enacted binding techniques and methods as Georgia law requires, which completely solved the problem.  Unlike these other states, there are simply no approved methods fo conducting breath tests in Georgia.  The current Implied Consent Regulations basically say the machine needs a permit, the operator needs a permit, and any procedural steps are not part of the approved methods.  The approved testing methods in Arkansas, by comparison, comprise eighteen pages of specific procedures.  To the extent that O.C.G.A. 40-6-392 (f) and/or Gidey v. State, 228 Ga. App. 250 (1997) purport to provide that evidence consisting of either the necessary certificates or the testing officer's testimony is conclusive evidence of compliance with O.C.G.A. 40-6-392 (a)(1)(A), both are unconstitutional in that they deny the Defendant due process of law.
The vast majority of states have statutory requirements very similar to O.C.G.A. 40-6-392 (a), which is based on the Uniform Motor Vehicle Code.  It has been uniformly held that blood and breath test results are not admissible under these shortcut statutes if it cannot be shown that the tests were conducted in accordance with the "methods approved" by the responsible state agency.  E.g., State v. Broyles, 94 Ore. Appp. 334, 765 P. 2d 239 (1988); Westerman v. State, 1974 Ok. Cr. 151, 525 P. 2d 1359 (1974).  It goes without saying that a test cannot be performed according to approved methods if there are no approved methods.
The Supreme Court of Alabama faced a situation very similar to that facing this Court in Patton v. City of Decatur, 337 So. 2d 321(Ala., l976). The Alabama statute provided that, "Chemical analyses of the person's blood, urine, breath to be considered valid under the provisions of this section shall have been performed according to methods approved by the State Board of Health..."  In Patton the police officer testified that he had a license issued by the appropriate State authority to operate the breath testing device.  In fact, that officer went farther than the officer in the instant case and testified as to the procedure he followed, which was printed in the form of a check list on a card. The trial court had before it no certified methods promulgated by the Board of Health for the administration of breath tests.  The Alabama Supreme Court ruled that their inability to ascertain the validity of the results demonstrated the absolute necessity for written procedural methods governing its use.  Id. at 324. The Court also observed that unwritten standards were the equivalent of having no standards at all.  As in Patton, this Court has before it  no evidence concerning the content of the "methods approved by the Division of Forensic Sciences."
Similarly, a Florida appellate court found that it was wrong to require the Defendant to come forward and prove non-compliance with internal maintenance regulations.  Donaldson  v. State, 561 So. 2d 648 (Fla. App., 1990).  The Court held that the State has the burden of proof in a criminal case, and the Defendant has no such burden.  Id. The actual dispute in that case involved the maintenance of the machine and whether it was properly registered with State authorities; nevertheless, this Court apparently felt that such issues were subsumed in the concept of testing methods.  The Court concluded by observing that, "for the State to totally omit evidence concerning half of the approved testing process cannot be substantial compliance."  Id.  at 650.
We do not enjoy the luxury of attacking existing regulations governing breath testing methods because Georgia does not have any.  The State apparently expects this Court to accept the outlandish proposition that "procedural steps" are not part of the approved methods.  My research has yielded only one reported appellate decision wherein the State put forward this proposition.  In rejecting this method-procedure dichotomy, the Supreme Court of Arizona noted that method and procedure are interchangeable words.  Fuenning v. Superior Court, 139 Ariz. 590, 680 P. 2d 121 (1984).  It has been uniformly held that, if it cannot be shown that a breath, urine, or blood test was conducted in accordance with methods (i.e., procedures) approved by the responsible state agency, the test results must be excluded.  Caffey v. State, 862 S.W. 2d 293 (Ark. App., 1993); State v. Chavis, 15 N.C. App. 566, 190 S.E. 2d 374 (1972); Mosley v. State, 22 Ark. App. 29, 732 S.W. 2d 861 (1987);
State v. Sinclair, 474 S.W. 2d 865 (Mo. App., 1971); Jones v. City of Forest City, 239 Ark. 211, 388 S.W. 2d 386 (1965); State v. Gallant, 108 N.H. 72, 227 A. 2d 597 (1967).  Although Georgia has some modest, very modest, requirements for obtaining a certificate to operate an Intoxilyzer 5000, it has been held that merely publishing rules pertaining to the licensing of breath test operators does not satisfy the statutory requirement that tests be conducted in accordance with approved methods.  State v. Gerber, 206 Neb. 75, 291 N.W. 2d 403 (1980); State v. Peters, 729 S.W. 2d 243 (Mo. App., 1987).
     The appellate courts of other states have gone even further in requiring compliance with the requirement that breath tests be conducted according to methods approved by the applicable state agency.  For example, it has been held that the state's failure  to specify inspection procedures as part of their published administrative rules prohibited the prosecutor from proving that the chemical analysis was "performed according to methods approved by the Department of Forensic Sciences."  Mayo v. City of Madison, 652 So. 2d 201(Ala., l994).  The Court observed that, at a minimum, DFS should adopt particularized rules to ensure that the Intoxilyzer 5000 machines are effectively inspected for accuracy and reliability.  Id. At 209.  Interestingly, the rule in effect in Alabama at the time merely provided that each breath testing machine would be checked periodically and lacked any specific instructions regarding how the machine would be inspected, what standards would be employed to determine that a machine was sufficiently accurate, nor what parts of the machine would be checked.  In other words, the Alabama rule that was found lacking by the Mayo court is exactly what we have in Georgia today.  The court went on to observe that under Alabama law the results of the breath test could still be admitted into evidence if the prosecution established a sufficient predicate under traditional evidentiary rules for the admission of scientific test results.  In other words, without the shortcut statute, the state must lay a traditional foundation for a breath test result.
Similarly, in State v. Miles,  775 So. 2d. 950 (Fla., 2000), the Florida Supreme Court found that the absence of a maintenance standard requiring the preservation (refrigeration) of a blood sample pending testing was inadequate and inconsistent with the purposes of the Implied Consent law as it related to insuring the reliability of test results.  But, once again, we are not concerned with non-compliance with a prescribed method, the failure of the state to prove compliance with a prescribed method, nor the inadequacy of a prescribed method, but the absence of any approved methods whatsoever. 
The purpose of requiring published techniques and methods is to make the court's job easier.  If proper, published regulations existed regarding the operation of the machine, the maintenance of the machine, and the competence and qualifications of permit holders, the court could simply go down the list and admit the test result, confident that the testing process met scientific standards that have been promulgated in an open setting and determined to be fair. 
Right now, the DFS is the judge of what is fair, not the Court system. 
The existing GBI implied consent rules can be summarized as follows: "We will approve whatever machine we want to, we will calibrate it whenever we feel like it, we will calibrate it to whatever standard we feel like, and we will issue permits to whoever we want.  We will not publish any of our rules, and they are subject to change without notice.  Go read the Forensic Sciences Act of 1997."
This approach does not help trial judges decide whether a new machine has been officially approved, whether the inspection certificates were the result of a meaningful inspection, whether the machine was operated pursuant to a standardized procedure, or whether there was any meaningful training given to the operating officer. 
These things are not only nice to know before a person is convicted, they are required by the Fifth Amendment and Article I, Section I, Paragraph I of the Georgia Constitution. 
The State is excused from putting up a normal foundation for scientific evidence.  O.C.G.A. §40-6-392(a)(1)(a).  Their burden of proof is therefore lessened in a DUI breath test case. 
The regulations ensure that there is nothing for the defendant to subject anyone to cross-examination with respect to this foundation.  They must be "satisfactory" regulations, to use the exact statutory language.  The reason they must be satisfactory is that without meaningful enabling rules, the shortcut statute is unconstitutional.
The Sixth Amendment confrontation clause is also brought into play because the defendant in a DUI case has no right to inspect the machine used to test him, and must first submit to state testing before he may have an independent test to counter the arresting officer's less safe opinion.  He must, in essence, accept on good faith that the state inspection and maintenance scheme is adequate to produce an honest test result, without being able to rely on a standardized inspection protocol and published operating procedures.
As it stands, the GBI/DFS may lawfully approve a new breath testing method every day without any legislative oversight, because the APA no longer applies to the GBI/DFS.  See, O.C.G.A. § 35-5-155 (the "Forensic Sciences Act of 1997").  The State agents are free to use any inspection ritual they feel is sufficient, issue any operating procedures they are comfortable with, and institute any permit-granting process that suits them. They answer to no one.  This situation invites the kind of slipshod self-regulation we see in this case, and it will only get worse until concerned judges step up and protect the constitutional rights guaranteed every criminal defendant.
 Respectfully submitted, this ________ day of _________________, 2004.

Allen M. Trapp, Jr.
P.O. Box 2206     Georgia Bar No. 715535
Carrollton, Ga. 30112
(770) 830-8560


 I hereby certify that I have this day served a true and correct copy of the foregoing Brief on the Solicitor of Douglas County by depositing a copy of same
in the United States mail with sufficient postage affixed thereto to ensure delivery addressed to the following:
Mr. Greg Barton
Solicitor, State Court of Douglas County
8700 Hospital Dr.
Douglasville, Ga. 30134.
This the _____________ day of _______________________, 2003.

Allen M. Trapp, Jr.
State Bar No. 715535
P.O. Box 2206                                      Carrollton, Ga. 30112
       (770) 830-8560



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