SHOULD BLOOD, BREATH, OR URINE TESTS BE ADMISSIBLE SIMPLY BECAUSE THEY COMPLY WITH O.C.G.A. 40-6-392?

By Ben Sessions on February 20th, 2017 in DUI / DWI

For years, courts throughout Georgia have examined whether an adequate foundation was laid for the admission of blood, breath, or urine tests simply by looking at compliance with O.C.G.A. 40-6-392. I would encourage you to reconsider whether blood, breath, or urine tests should be admissible simply because they comply with O.C.G.A. 40-6-392. The relevant provision of O.C.G.A. 40-6-392 states:

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.

The language “shall be admissible” in O.C.G.A. 40-6-392 is problematic because it is an act of the legislature that purports to tell the courts what type of evidence the Court must accept. This is an act by the legislature that the Courts of Georgia have typically been rejected:

In Calhoun v. State Highway Dept., 223 Ga. 65, 153 S.E.2d 418 (1967), we held that [i]t is beyond the power of the General Assembly to specify what evidence can or can not be introduced to prove just and adequate compensation. If [the Legislature] have such power they could exclude all evidence and thus destroy the Constitution and private property also. If they can by the 1966 Act exclude evidence held judicially to be relevant and *286 admissible as was done in [an earlier opinion], they can render the judiciary impotent. [Cits.]

Id. at 68, 153 S.E.2d 418.

Mason v. Home Depot U.S.A., Inc., 283 Ga. 271, 285–86, 658 S.E.2d 603, 614 (2008).

Georgia courts have relied heavily upon this language to support the admissibility of test results that were performed under questionable circumstances:

As the State’s evidence satisfied this burden, the trial court erred by suppressing the test results. Any deviation from the operator’s manual goes to the weight to be given the test results and not to their admissibility. Scara v. State, 259 Ga.App. 510, 513(1), 577 S.E.2d 796 (2003); Jarriel v. State, 255 Ga.App. 305, 308(3), 565 S.E.2d 521 (2002).

Although Palmaka relies upon statements in Casey v. State, 240 Ga.App. 329, 331(3), 523 S.E.2d 395 (1999), for the proposition that the 20–minute waiting period is part of the approved methods of testing which much be satisfied, this reliance is misplaced. Casey was decided before the GBI promulgated in 2000 the rule now codified in Ga. Comp. R. & Regs. r. 92–3–.06(12)(b). Accordingly, to the extent that Casey holds that the 20–minute waiting period is part of the approved methods of testing, it is inconsistent with both the new Rule and Naik, supra, and, therefore, the language in Casey is disapproved and will no longer be followed.

Accordingly, the order of the trial court suppressing the test results is reversed and the case is remanded for further proceedings.

State v. Palmaka, 266 Ga. App. 595, 596, 597 S.E.2d 630, 631 (2004)

If you have a DUI case pending that involves a blood, breath, or urine test, consider raising this relatively straightforward challenge to the statute and the admissibility of the test result.