As a result of some poor lawyering and an unfortunate appeal, Georgia DUI defendants are increasingly facing the prospect of defending themselves against the numerical value in their preliminary hearings (motions hearings). This trend flies in the face of a body of established Georgia DUI law, and with timely objections, I believe that it can be fought. In the courts in which prosecutors have sought to admit preliminary (or portable) breath test results in motions hearings, I have successfully objected to the admission of the results and have yet to have a trial court admit the PBT results. Below, is a simple brief that I have submitted on this issue:
In support of the Defendant's objection to the admissibility of numerical test results from a portable breath test (hereinafter, referred to as “PBT”), the Defendant respectfully shows this Honorable Court the following:
1. The admissibility of numerical test results from a PBT were specifically addressed in State v. Holler, 224 Ga. App. 66, 479 S.E.2d 780 (1996). In Holler, the Court of Appeals stated, “[a]s 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.” Id. at 69.
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. 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 in determining probable cause to arrest a motorist suspected of driving under the influence of alcohol.'
Id. (citations omitted).
Holler remains undistinguished under Georgia law and stands for the proposition that the numerical test results produced by a PBT are not admissible, even in a probable cause hearing.
2. The admission of numerical results from a PBT has not been shown to meet the foundational requirements for admissibility under Harper v. State, 249 Ga. 519 (1982). Scientific evidence is evidence based upon principals of science and “shrouded in the mystery of professional skill or knowledge.” See, Metropolitan Life Insurance Company v. Saul, 189 Ga. 1, 9 (1939). Such evidence is “beyond the ken of the average [person].” See, Williams v. State, 254 Ga. 508, 510 (1985). The numerical test results from a PBT constitute scientific evidence. This is not a commonsense evaluation and observation.
Because the numerical values produced by a PBT constitute scientific evidence, the State must establish the foundation required by Harper v. State, 249 Ga. 519 (1982), before the court can admit the evidence. Harper requires that the court make the determination that the evidence “has reached a scientific stage of verifiable certainty… [and that the] procedure rests upon the laws of nature.” Id. at 525. The court makes such a determination from “the evidence available to [it];” this may include expert testimony, exhibits, treatises, or the rationale of cases from other jurisdictions. Id. at 25-26. Once the evidence is “recognized in a substantial number of courts” the court may take judicial notice that the scientific evidence has reached a stage of verifiable certainty. See, Harper, 249 Ga. at 525.
Unless the State establishes the foundation required by Harper, the numerical results produced by the PBT should not be admitted against the defendant. Because the officer's investigative technique constituted the gathering of scientific evidence that has not been recognized by a substantial number of courts and has not been utilized for a significant period of time with expert testimony being offered in case after case, the trial court is not authorized to admit the evidence without the proper foundation. See Izer v. State, 236 Ga. App. 282 (1999).
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