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Higginbotham v. State

Court of Appeals of Georgia
Mar 2, 1984
316 S.E.2d 181 (Ga. Ct. App. 1984)

Opinion

67506.

DECIDED MARCH 2, 1984.

D.U.I. Clarke State Court. Before Judge Pittard.

Denny C. Galis, for appellant.

Ken L. Stula, Solicitor, for appellee.


Appellant appeals from her conviction of driving under the influence of alcohol. At trial, the evidence showed that appellant's blood alcohol level at the time of the offense had been determined by means of a breath test administered on an Auto-Intoximeter. Appellant asserts that evidence as to the results of her blood test should have been stricken because the state failed to prove that the machine on which the test was administered had been approved by the Director of the Department of Public Safety.

"Although [OCGA § 40-6-392] does not impose any criteria for the testing equipment to be used, the Department of Public Safety Rules (Rule 570.9-.06 (5)) require the use of specific equipment or approval by the director of the equipment used. In the absence of proof that the equipment utilized in the test is of the approved type or has the approval of the director, the test results . . . are inadmissible. [Cits.]" State v. Johnston, 160 Ga. App. 71, 72 ( 286 S.E.2d 47) (1981), aff'd 249 Ga. 413 ( 291 S.E.2d 543) (1982). "However, as was noted in Willoughby v. State, 153 Ga. App. 434, 435 ( 265 S.E.2d 352) [1980], `Department of Public Safety Rule 570-9-.06 (5), effective October 31, 1979 . . . provides: "Breath tests other than the original screening test may be conducted on [an] . . . Auto-Intoximeter . . ."' . . . Consequently, a properly authenticated record or the testimony of the director is no longer necessary for tests administered on an Auto-Intoximeter." Stewart v. State, 165 Ga. App. 62, 63 ( 299 S.E.2d 134) (1983).

In the instant case, the police officer who administered the breath test to appellant testified that he was certified to perform tests on the Auto-Intoximeter, and a copy of his certificate was admitted into evidence. "`Since the director issued the permit for the operation of this particular machine, it may be inferred that its design was specifically approved by him. Accordingly, the results of the test were admissible.' [Cit.]" Stewart v. State, supra at 63. The trial court did not err in refusing to strike the evidence.

Judgment affirmed. Deen, P. J., and Banke, J., concur.

DECIDED MARCH 2, 1984.


Summaries of

Higginbotham v. State

Court of Appeals of Georgia
Mar 2, 1984
316 S.E.2d 181 (Ga. Ct. App. 1984)
Case details for

Higginbotham v. State

Case Details

Full title:HIGGINBOTHAM v. THE STATE

Court:Court of Appeals of Georgia

Date published: Mar 2, 1984

Citations

316 S.E.2d 181 (Ga. Ct. App. 1984)
316 S.E.2d 181

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