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Preliminary Breath Test Results in Georgia DUI Cases

Over the past decade or so, the Georgia DUI defense bar has made a concerted effort to inform the public of certain rights that they have during a DUI investigation.  Despite this effort, most of the public and some lawyers have a great deal of confusion about what preliminary breath test results may be used for.  Holler v. State, 224 Ga. App. 66, 479 S.E.2d 780 (1996), which remains undistinguished by in Georgia, is the case that clarifies the permissible purposes of preliminary breath tests in DUI investigations:

At trial the State in essence argued that, although numerical test results are not admissible at trial, an exception should begranted for the admission of this evidence at a suppression hearing for purposes of establishing probable cause for a DUI arrest. As a general rule, the numerical results of an alco-sensor test are not admissible in evidence, as the results of an alco-sensor test are not used as evidence of the amount of alcohol or drug in a person’s blood. See Keenan v. State, 263 Ga. 569, 571(2), 436 S.E.2d 475; Porche v. State, 217 Ga.App. 325(1), 457 S.E.2d 578; Turrentine v. State, 176 Ga.App. 145, 146(1), 335 S.E.2d 630; see also Ayers v. City of Atlanta, 221 Ga.App. 381, 382(3), 471 S.E.2d 240. Even the characterization of the results of an alco-sensor test as “high” has been held to constitute inadmissible evidence of the degree of a suspect’s intoxication. Sturdy v. State, 192 Ga.App. 71, 383 S.E.2d 632. However, evidence can be admitted, as was allowed in this case, as to whether a suspect tested positive or negative, or passed or failed, an alco-sensor test; this is consistent with the use of an alco-sensor “as an initial screening device to aid the police officer in determining probable cause to arrest a motorist suspected of driving under the influence of alcohol.” Turrentine, supra at 146(1); see Sturdy v. State, supra. Evidence also is admissible whether a suspect re- fuses to submit to an alco-sensor test. Keenan, supra at 572(2), 436 S.E.2d 475.

A trial court is vested with wide discretion in determining the admissibility of evidence. Spencer v. State, 260 Ga. 640, 646(8), 398 S.E.2d 179. Admission of evidence is a matter resting largely within the discretion of the trial court; an appellate court will not interfere with a trial court’s ruling as to evidence admissibility absent an abuse of discretion. Gully v. Glover, 190 Ga.App. 238, 241(4), 378 S.E.2d 411; Santone v. State, 187 Ga.App. 789, 793, 371 S.E.2d 428. The State has failed to show an abuse of discretion by the trial court in following the general rule and declining to allow evidence as to the numerical score appellee received on an alco-sensor test to be admitted in evidence at a suppression hearing. See Porche, supra; cf. Mendoza v. State, 196 Ga.App. 627, 629(3), 396 S.E.2d 576. Accordingly, we will not interfere with that ruling. Gully, supra; Santone, supra. Further, as an alco-sensor test is not used as evidence as to the amount of alcohol or drugs in a person’s blood, we decline this opportunity to create a blanket exception which would serve as precedent for making alco-sensor numerical test results admissible (for the limited purpose of establishing probable cause to arrest) at all future suppression hearings. The State’s assertion of error as to this matter is without merit.

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About the Author

Ben Sessions, Attorney at Sessions Law Group
Ben Sessions

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