Below is a motion that I have used to attack the admissibility of the “Tahoe” Intoxilyzer 5000 breath test in Georgia DUI cases. If you need the exhibits referenced here, please email me.
MOTION IN LIMINE TO EXCLUDE BREATH TEST RESULTS BASED UPON THE FAILURE TO COMPLY WITH O.C.G.A. § 40-6-392(a)(1)(A) AND MOTION IN LIMINE TO EXCLUDE THE STATE-ADMINISTERED BREATH TEST BASED UPON HARPER
The state-administered breath test in this case was performed on the Intoxilyzer 5000, Serial Number 68-013057, on September 5, 2010. The Intoxilyzer 5000 used in this case was purchased in 2002 by the Georgia State Patrol for the Nighthawks DUI task force. Until 2010, the Intoxilyzer 5000, Serial Number 68-013057, was employed in the mobile Breath Alcohol Testing (hereinafter, “BAT”) trailer. In 2010, the Intoxilyzer 5000, Serial Number 68-013057, was transitioned to the rear of a Chevrolet Tahoe.
The Georgia Bureau of Investigations' Division of Forensic Sciences has produced a report specifically addressing the conditions under which breath tests may be performed Intoxilyzer 5000, Serial Number 68-013057, in the rear of the Chevrolet Tahoe. See , Exhibit A. Approximately a month after the state's breath test in this case, the “initial evaluation” of the the Intoxilyzer 5000, Serial Number 68-013057, in the Chevrolet Tahoe, was performed. The “initial evaluation” took place on or about October 21, 2010. Substantial changes to the Intoxilyzer 5000 in the Chevrolet Tahoe were implemented after October 21, 2010. A slotted plexiglass divider was placed in front of the Intoxilyzer 5000 to insulate the instrument from the outside temperature. A subsequent evaluation on November 17, 2010, “showed a much greater stability of the testing compartment.” However, whether the plexiglass modification was to protect the instrument from inappropriate temperature testing conditions remained unclear: “While the Nighthawk unit has gone [to] great lengths to both control the instrument climate and monitor the ambient temperature and humidity, it is unclear whether these safeguards are sufficient to ensure an operational temperature between 68 [degrees] F to 86 [degrees] F.” See, Exhibit A, p. 4.
The GBI'S Division of Forensic Sciences has implemented mandatory monitoring and documenting requirements specifically related to the testing condition of this instrument and the conditions that the suspect was subjected to prior to testing. According to the GBI, “[a]t a minimum the temperature of the instrument enclosure must be recorded and the test not performed if the recorded temperature varies outside the manufacturer's recommended operating range of 68 [degrees] F to 86 [degrees] F.” See, Exhibit A, p. 4. Further, after October 21, 2010, the GBI's Division of Forensic Sciences implemented specific requirements relating to the conditions of the instrument to obtain a “valid” test:
The temperature of the testing equipment environment must be monitored and recorded in the instrument logbook for each test administered. For the test to be considered valid, the temperature of the instrument environment at the time of testing must be between 68 [degrees] F and 86 [degrees] F as recommended by the manufacturer. The temperature of the testing equipment environment at the time of operation must be noted in the right hand margin of the GBI DOFS log sheet along with the subject information.
See, Exhibit A, p. 6.
After the October 21, 2010 evaluation, the GBI implemented specific testing requirements with regard to a subject being tested on this instrument:
The test subject must remain in a climate controlled environment of 68 [degrees] F and 86 [degrees] F for at least 20 minutes immediately prior to the test and their exposure to outside ambient temperatures prior to the first subject sample should be minimized. The start time, end time, and temperature of the environment in which the test subject is held must be recorded on the GBI DOFS log sheet for each test administered.
See, Exhibit A, p. 6.
O.C.G.A. § 40-6-392(a) provides, in part:
(a) Upon the trial of any civil or criminal action or proceeding arising out of acts alleged to have been committed by any person in violation of Code Section 40-6-391, evidence of the amount of alcohol or drug in a person's blood, urine, breath, or other bodily substance at the alleged time, as determined by a chemical analysis of the person's blood, urine, breath, or other bodily substance shall be admissible. Where such a chemical test is made, the following provisions shall apply:
(1)(A) Chemical analysis of the person's blood, urine, breath, or other bodily substance, to be considered valid under this Code section, shall have been performed according to methods approved by the Division of Forensic Sciences of the Georgia Bureau of Investigation on a machine which was operated with all its electronic and operating components prescribed by its manufacturer properly attached and in good working order and by an individual possessing a valid permit issued by the Division of Forensic Sciences for this purpose. The Division of Forensic Sciences of the Georgia Bureau of Investigation shall approve satisfactory techniques or methods to ascertain the qualifications and competence of individuals to conduct analyses and to issue permits, along with requirements for properly operating and maintaining any testing instruments, and to issue certificates certifying that instruments have met those requirements, which certificates and permits shall be subject to termination or revocation at the discretion of the Division of Forensic Sciences.
The State cannot show that Defendant's breath test was performed according to the methods approved by the Division of Forensic Sciences of the Georgia Bureau of Investigation as required by O.C.G.A. § 40-6-392(a)(1)(A). The test performed upon the Defendant in this case does not comply with the mandates of the Division of Forensic Sciences with regard to tests performed with the Intoxilyzer 5000, Serial Number 68-013057, in the rear of the Chevrolet Tahoe. The Division of Forensic Sciences has adopted rules generally applicable to the evidential breath alcohol analysis. Ga. Comp. R. & Regs. r. 92-3-.06(12)(a). The Division of Forensic Sciences has also adopted a rule declaring that “[a]dministrative, procedural, and/or clerical steps performed in conducting a test shall not constitute a part of the approved method of analysis.” Ga. Comp. R. & Regs. r. 92-3-.06(12)(b).
The mandatory requirements for obtaining a “valid” test on the Intoxilyzer 5000, Serial Number 68-013057, after it was placed in the rear of the Chevrolet Tahoe, must be interpreted in conjuction with the existing Division of Forensic Sciences rules. The rules established for testing on the Intoxilyzer 5000, Serial Number 68-013057, after it was placed in the rear of the Chevrolet Tahoe, do not conflict with the existing general rules for evidential breath testing contained in Ga. Comp. R. & Regs. r. 92-3-.06(12). Rather, the more specific rules implemented with regard to breath testing performed on this unique evidential breath testing device are intended to supplement the generally applicable rules. See, Hospital Authority of Gwinnett County v. State Health Planning Agency et al., 438 S.E.2d 912, 914 (Ga. App. 1993). The specific requirements for obtaining a valid evidential breath test result are intended for this specific instrument because of the unique testing conditions that exist when a breath test is performed out of the rear of a Chevrolet Tahoe.
To the extent that the DOFS requirements with regard to obtaining a “valid” breath test result on the Intoxilyzer 5000, Serial Number 68-013057, after it was placed in the rear of the Chevrolet Tahoe, conflict with the rules contained in Ga. Comp. R. & Regs. r. 92-3-.06(12), the more recent requirements applicable to tests performed on this specific instrument control over the previously existing general rules. See, First National Bank of Atlanta v. Sinkler, 317 S.E.2d 897, 899 (Ga. App. 1984)(“it is well settled in this jurisdiction that all statutes are presumed to be enacted by the legislature with full knowledge of the existing condition of the law and with reference to it…”). If the Division of Forensic Sciences implemented rules regarding tests performed on this specific device that conflict with previously established rules, the Division is presumed to have established the new policy and procedure with full knowledge of the conflict with the older rule. Accordingly, the new policies and procedures with regard to this specific device and the unique conditions under which tests on it take place should be given full effect.
THE BREATH TEST EVIDENCE IN THIS CASE DOES NOT SATISFY HARPER
The determination of whether a scientific principle or technique is admissible in criminal case in Georgia is governed by the rule stated in Harper v. State, 249 Ga. 519, 525-26, 292 S.E.2d 389 (1982). The Harper rule requires that the Court in a criminal case determine “whether a given scientific principle or technique is a phenomenon that may be verified with such certainty that it is competent evidence in a court of law….” Id. at 525. Otherwise stated, the Court must determine whether the scientific principle or technique “has reached a scientific stage of verifiable certainty” or “‘rests upon the laws of nature.'” Id. (citations omitted). “[E]vidence based on a scientific principle or technique is admissible only if the science underlying the evidence is a phenomenon that may be verified with such certainty that it is competent evidence in a court of law.” Parker v. State, 307 Ga.App. 61, 704 S.E.2d 438 (2010).
In Harper, the Georgia Supreme Court described the types of evidence that our trial courts should look to in determining whether a scientific principle or technique has reached a scientific stage of verifiable certainty. The Harper court explicity expressed its disapproval of the “counting heads” rule of Frye v. United States, 293 F. 1013 (D.C. Cir. 1923). Id. According to the Harper Court:
The trial court may make this determination from evidence presented to it at trial by the parties; in this regard expert testimony may be of value. Or the trial court may base its determination on exhibits, treatises or the rationale of cases in other jurisdictions. The significant point is that the trial court makes this determination based on the evidence available to him rather than by simply calculating the consensus in the scientific community. Once a procedure has been recognized in a substantial number of courts, a trial judge may judicially notice, without receiving evidence, that the procedure has been established with verifiable certainty, or that it rests upon the laws of nature.
Id. at 525-26. “[O]nce a procedure has been utilized for a significant period of time, and expert testimony has been received thereon in case after case, the trial court does not have to keep reinventing the wheel; a once novel technology can and does become commonplace.” Hawkins v. State, 223 Ga. App. 34, 476 S.E.2d 803, 807 (1996).
The Intoxilyzer 5000 at issue in this case was not used in its customary capacity. In fact, the instrument used in this case was the only Intoxilyzer 5000 employed as a mobile device in the rear of a Tahoe in Georgia. As discussed above, quality control measures were not undertaken on this machine until after the Defendant's test. Given that the Defendant's test took place prior to the evaluation of the instrument and prior to the implementation of safeguards upon this machine, it can hardly be said that the results produced by the machine in this case had “reached a scientific stage of verifiable certainty.”
WHEREFORE, Defendant moves the Court to exclude the results of any breath test obtained in connection with the charges in the above-styled accusation from use as evidence in the trial of the above-styled case.
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