2020 Georgia Code
Title 40 - Motor Vehicles and Traffic
Chapter 6 - Uniform Rules of the Road
Article 15 - Serious Traffic Offenses
§ 40-6-392. Chemical Tests for Alcohol or Drugs

1. 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. 1. 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.
      2. In all cases where the arrest is made on or after January 1, 1995, and the state selects breath testing, two sequential breath samples shall be requested for the testing of alcohol concentration. For either or both of these sequential samples to be admissible in the state's or plaintiff's case-in-chief, the readings shall not differ from each other by an alcohol concentration of greater than 0.020 grams and the lower of the two results shall be determinative for accusation and indictment purposes and administrative license suspension purposes. No more than two sequential series of a total of two adequate breath samples each shall be requested by the state; provided, however, that after an initial test in which the instrument indicates an adequate breath sample was given for analysis, any subsequent refusal to give additional breath samples shall not be construed as a refusal for purposes of suspension of a driver's license under Code Sections 40-5-55 and 40-5-67.1. Notwithstanding the above, a refusal to give an adequate sample or samples on any subsequent breath, blood, urine, or other bodily substance test shall not affect the admissibility of the results of any prior samples. An adequate breath sample shall mean a breath sample sufficient to cause the breath-testing instrument to produce a printed alcohol concentration analysis.
   2. When a person shall undergo a chemical test at the request of a law enforcement officer, only a physician, registered nurse, laboratory technician, emergency medical technician, or other qualified person may withdraw blood for the purpose of determining the alcoholic content therein, provided that this limitation shall not apply to the taking of breath or urine specimens. No physician, registered nurse, or other qualified person or employer thereof shall incur any civil or criminal liability as a result of the medically proper obtaining of such blood specimens when requested in writing by a law enforcement officer;
   3. The person tested may have a physician or a qualified technician, chemist, registered nurse, or other qualified person of his own choosing administer a chemical test or tests in addition to any administered at the direction of a law enforcement officer. The justifiable failure or inability to obtain an additional test shall not preclude the admission of evidence relating to the test or tests taken at the direction of a law enforcement officer; and
   4. Upon the request of the person who shall submit to a chemical test or tests at the request of a law enforcement officer, full information concerning the test or tests shall be made available to him or his attorney. The arresting officer at the time of arrest shall advise the person arrested of his rights to a chemical test or tests according to this Code section.
2. Except as provided in subsection (c) of this Code section, 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, the amount of alcohol in the person's blood at the time alleged, as shown by chemical analysis of the person's blood, urine, breath, or other bodily substance, may give rise to inferences as follows:
   1. If there was at that time an alcohol concentration of 0.05 grams or less, the trier of fact in its discretion may infer therefrom that the person was not under the influence of alcohol, as prohibited by paragraphs (1) and (4) of subsection (a) of Code Section 40-6-391; or
   2. If there was at that time an alcohol concentration in excess of 0.05 grams but less than 0.08 grams, such fact shall not give rise to any inference that the person was or was not under the influence of alcohol, as prohibited by paragraphs (1) and (4) of subsection (a) of Code Section 40-6-391, but such fact may be considered by the trier of fact with other competent evidence in determining whether the person was under the influence of alcohol, as prohibited by paragraphs (1) and (4) of subsection (a) of Code Section 40-6-391.
3. 1. In any civil or criminal action or proceeding arising out of acts alleged to have been committed in violation of paragraph (5) of subsection (a) of Code Section 40-6-391, if there was at that time or within three hours after driving or being in actual physical control of a moving vehicle from alcohol consumed before such driving or being in actual physical control ended an alcohol concentration of 0.08 or more grams in the person's blood, breath, or urine, the person shall be in violation of paragraph (5) of subsection (a) of Code Section 40-6-391.
   2. In any civil or criminal action or proceeding arising out of acts alleged to have been committed by any person in violation of subsection (i) of Code Section 40-6-391, if there was at that time or within three hours after driving or being in actual physical control of a moving vehicle from alcohol consumed before such driving or being in actual physical control ended an alcohol concentration of 0.04 grams or more in the person's blood, breath, or urine, the person shall be in violation of subsection (i) of Code Section 40-6-391.
   3. In any civil or criminal action or proceeding arising out of acts alleged to have been committed by any person in violation of subsection (k) of Code Section 40-6-391, if there was at that time or within three hours after driving or being in actual physical control of a moving vehicle from alcohol consumed before such driving or being in actual physical control ended an alcohol concentration of 0.02 grams or more in the person's blood, breath, or urine, the person shall be in violation of subsection (k) of Code Section 40-6-391.
4. In any criminal trial, the refusal of the defendant to permit a chemical analysis to be made of his blood, breath, urine, or other bodily substance at the time of his arrest shall be admissible in evidence against him.
5. 1. A certification by the office of the Secretary of State or by the Department of Public Health that a person who drew blood was a licensed or certified physician, physician assistant, registered nurse, practical nurse, medical technologist, medical laboratory technician, or phlebotomist at the time the blood was drawn;
   2. Testimony, under oath, of the blood drawer; or
   3. Testimony, under oath, of the blood drawer's supervisor or medical records custodian that the blood drawer was properly trained and authorized to draw blood as an employee of the medical facility or employer

      shall be admissible into evidence for the purpose of establishing that such person was qualified to draw blood as required by this Code section.

(f) Each time an approved breath-testing instrument is inspected, the inspector shall prepare a certificate which shall be signed under oath by the inspector and which shall include the following language:

"This breath-testing instrument (serial no. ______________) was thoroughly inspected, tested, and standardized by the undersigned on (date ______________) and all of its electronic and operating components prescribed by its manufacturer are properly attached and are in good working order." When properly prepared and executed, as prescribed in this subsection, the certificate shall, notwithstanding any other provision of law, be self-authenticating, shall be admissible in any court of law, and shall satisfy the pertinent requirements of paragraph (1) of subsection (a) of this Code section and subparagraph (g)(2)(F) of Code Section 40-5-67.1.

(Ga. L. 1953, Nov.-Dec. Sess., p. 556, § 47; Ga. L. 1968, p. 448, §§ 1, 2; Ga. L. 1974, p. 562, §§ 1, 2; Code 1933, § 68A-902.1, enacted by Ga. L. 1974, p. 633, § 1; Ga. L. 1975, p. 1008, § 3; Ga. L. 1977, p. 1036, § 1; Ga. L. 1983, p. 1000, § 14; Ga. L. 1988, p. 1893, §§ 3, 5; Ga. L. 1990, p. 2048, § 5; Ga. L. 1991, p. 1886, § 10; Ga. L. 1992, p. 2564, § 13; Ga. L. 1994, p. 1600, § 10; Ga. L. 1995, p. 1160, § 4; Ga. L. 1997, p. 143, § 40; Ga. L. 1997, p. 760, § 25; Ga. L. 2001, p. 208, § 1-6; Ga. L. 2009, p. 453, § 1-4/HB 228; Ga. L. 2009, p. 859, § 3/HB 509; Ga. L. 2011, p. 705, § 6-3/HB 214.)

- Obtaining of blood sample to test for presence of intoxicating substances in instances where person, as result of casualty or other ailment is unable to give consent to taking of sample, § 45-16-46.

Administering tests to persons charged with navigating vessels while intoxicated, § 52-7-12.

Implied Consent, Official Compilation of the Rules and Regulations of the State of Georgia, Georgia Bureau of Investigation, Chapter 92-3.

- Pursuant to Code Section 28-9-5, in 2001, paragraphs (c)(.1), (c)(1), and (c)(2) were redesignated as paragraphs (c)(1), (c)(2), and (c)(3), respectively.

- Ga. L. 1994, p. 1600, § 11, not codified by the General Assembly, provides that the provisions of the Act shall apply only to cases arising out of arrests occurring on or after January 1, 1995, except that the provisions amending subsection (a) of Code Section 40-6-391.1, restricting the acceptance of a plea of nolo contendere to a charge of violating Code Section 40-6-391, and the provisions amending subsection (c) of Code Section 40-6-391, changing the criminal penalties for violations of the section, shall become effective July 1, 1994, and except that the provisions amending subsection (g) of Code Section 40-5-67.1, relating to the time for requesting a hearing on an administrative suspension, the stay of a suspension pending such hearing, and the early termination of an administrative suspension under certain conditions shall apply to cases pending on July 1, 1994.

Ga. L. 1995, p. 1160, § 5, not codified by the General Assembly, provides that the Act shall apply to all cases pending at the time of its approval by the Governor or its becoming law without such approval, except that the provisions regarding the requirement for two breath samples set forth in subparagraph (a)(1)(B) of Code Section 40-6-392 shall not apply to arrest made prior to January 1, 1995.

Ga. L. 1997, p. 760, § 1, not codified by the General Assembly, provides: "This Act shall be known and may be cited as the 'Teen-age and Adult Driver Responsibility Act'."

Ga. L. 1997, p. 760, § 27, not codified by the General Assembly, provides that the amendment made by the Act to this Code section shall apply to offenses committed on or after July 1, 1997, and shall not apply to offenses committed prior to that date.

- For article, "Challenges to Humanitarian Legal Approaches for Eliminating the Hazards of Drunk Alcoholic Drivers," see 4 Ga. L. Rev. 251 (1970). For article surveying judicial developments in Georgia criminal law, see 31 Mercer L. Rev. 59 (1979). For article surveying Georgia cases in the area of evidence from June 1979 through May 1980, see 32 Mercer L. Rev. 63 (1980). For article surveying developments in Georgia workers' compensation law from mid-1980 through mid-1981, see 33 Mercer L. Rev. 323 (1981). For article surveying law of evidence in 1984-1985, see 37 Mercer L. Rev. 249 (1985). For annual survey of the law of evidence, see 38 Mercer L. Rev. 215 (1986). For article commenting on the 1997 amendment of this Code section, see 14 Ga. St. U.L. Rev. 203 (1997). For annual survey article discussing developments in the law of evidence, see 51 Mercer L. Rev. 279 (1999). For article, "The Harper Standard and the Alcosensor: The Road Not Traveled," see 6 Ga. St. B.J. 8 (2000). For survey article on criminal law and procedure for the period from June 1, 2002 through May 31, 2003, see 55 Mercer L. Rev. 117 (2003). For annual survey of criminal law, see 57 Mercer L. Rev. 113 (2005). For annual survey of evidence law, see 58 Mercer L. Rev. 151 (2006). For article on the 2011 amendment of this Code section, see 28 Ga. St. U.L. Rev. 147 (2011). For annual survey on criminal law, see 71 Mercer L. Rev. 69 (2019). For note discussing scientific basis of blood classification and use of blood tests as evidence, see 16 Mercer L. Rev. 306 (1964). For note on the 1991 amendment of this Code section, see 8 Ga. St. U.L. Rev. 129 (1992). For note on the 1992 amendment of this Code section, see 9 Ga. St. U.L. Rev. 298 (1992). For note, "The Final Patient Privacy Regulations Under the Health Insurance Portability and Accountability Act - Promoting Patient Privacy or Public Confusion?," see 37 Ga. L. Rev. 723 (2003). For note, "Rodriguez v. State: Addressing Georgia's Implied Consent Requirements for Non-English- Speaking Drivers," see 54 Mercer L. Rev. 1253 (2003). For comment on Flournoy v. State, 106 Ga. App. 756, 128 S.E.2d 528 (1962), see 14 Mercer L. Rev. 442 (1963). For comment, "Is There a Georgia Supreme Court, Problem? Analyzing the Georgia Supreme Court's New Peculiar Approach Towards Breathalyzers and Implied Consent Law," see 71 Mercer L. Rev. 393 (2019).

ANALYSIS

• General Consideration
• Constitutionality
• Performance of Tests
• Admissibility of Results
• Judicial Proceedings
• Jury Instructions

General Consideration

Editor's notes.

- In light of the similarity of the statutory provisions, annotations cited below referring to .12 percent alcohol blood level construe paragraph (b)(4) as it existed prior to the 1988 amendment.

- Georgia Supreme Court concluded that Ga. Const. 1983, Art. I, Sec. I, Para. XVI precluded admission of evidence that the suspect refused to consent to a breath test; thus, O.C.G.A. §§ 40-5-67.1(b) and40-6-392(d) were unconstitutional to the extent that the statutes allow the defendant's refusal to submit to a breath test to be admitted into evidence at a criminal trial. Elliott v. State, 305 Ga. 179, 824 S.E.2d 265 (2019).

Ga. L. 1968, p. 448 should be strictly construed. Burson v. Collier, 226 Ga. 427, 175 S.E.2d 660 (1970).

In cases of offenses committed prior to April 21, 1995, strict compliance with the notice requirement as to independent tests was not required and failure to fully advise the defendants of the defendants' rights to an independent test by qualified personnel did not render the warning legally insufficient. State v. Holcomb, 219 Ga. App. 231, 464 S.E.2d 651 (1995).

- Standard Operating Procedures for urinalysis testing of the Division of Forensic Sciences of the Georgia Bureau of Investigation satisfied the requirements regarding adoption and publication of rules under O.C.G.A. § 50-13-3. State v. Cooper, 229 Ga. App. 97, 493 S.E.2d 1 (1997).

- Provisions requiring certification of inspection of breath-testing instruments applied retroactively to cases pending on the date of enactment (April 21, 1995); thus, suppression of breath test results was proper since the state could not produce an inspection certificate. State v. Kampplain, 223 Ga. App. 16, 477 S.E.2d 143 (1996); Cullen v. State, 223 Ga. App. 356, 477 S.E.2d 620 (1996).

Breath testing device certificates provided for in O.C.G.A. § 40-6-392(f) are records made within the regular course of business. Brown v. State, 268 Ga. 76, 485 S.E.2d 486 (1997); Rowell v. State, 229 Ga. App. 397, 494 S.E.2d 5 (1997); Jackson v. State, 233 Ga. App. 568, 504 S.E.2d 505 (1998).

- Printout from a gas chromatograph is a graph or recordation of data and is not a scientific report; therefore, Rayburn v. State, 234 Ga. App. 482, 506 S.E.2d 876 (1998), along with other cases interpreting O.C.G.A. § 17-16-23, do not govern a discovery dispute regarding the printout. Birdsall v. State, 254 Ga. App. 555, 562 S.E.2d 841 (2002).

- Trial court did not err in refusing a DUI defendant's request to admit maintenance logs showing when the Intoxilyzer 5000 used to conduct the defendant's breath test was taken out of service. Intoxilyzer 5000 maintenance logs were not even relevant enough to be discoverable pursuant to O.C.G.A. § 40-6-392(a)(4). Jacobson v. State, 306 Ga. App. 815, 703 S.E.2d 376 (2010), cert. denied, No. S11C0498, 2011 Ga. LEXIS 582 (Ga. 2011).

- Certificate of inspection of breath testing instruments required to be made by O.C.G.A. § 40-6-392(f) is not a written scientific report within the meaning of O.C.G.A. § 17-16-23, relating to the right of defendants to reports. Harmon v. State, 224 Ga. App. 890, 482 S.E.2d 730 (1997).

- Once a certificate of inspection is completed as specified under O.C.G.A. § 40-6-392, the certificate is admissible in any court of law without further proof and a further foundation for admission under the business records exception to the hearsay rule is rendered unnecessary. State v. Haddock, 235 Ga. App. 726, 510 S.E.2d 561 (1998).

- Under the Fourth Amendment, the defendant's motion to suppress the results of a state-administered blood test was improperly granted as the trial court erred in concluding that the defendant did not actually consent to the test because the officer promptly read the implied consent warning to the defendant and confirmed the defendant's affirmative response after the defendant was assisted from the hood of the car, after the defendant asked the officer to retrieve the defendant's shoes, which the officer agreed to do, and after the officer asked the defendant in a calm and polite voice to have a seat in the patrol car; and the evidence included the hospital's consent form that gave the defendant the option of refusing consent. State v. Domenge-Delhoyo, 338 Ga. App. 439, 790 S.E.2d 139 (2016).

- O.C.G.A. § 40-5-67.1, upon becoming effective, did not repeal that portion of O.C.G.A. § 40-6-392 regarding implied consent. Code Section40-5-67.1 primarily concerns the methods and procedures to effect the administrative suspension of a driver's license based upon the use of chemical test results and does not address the admissibility of evidence in a criminal trial and was intended to provide additional consent notice requirements. State v. Hassett, 216 Ga. App. 114, 453 S.E.2d 508 (1995).

- When the defendant received an implied consent notice and blood test before the defendant's arrest for driving under the influence, the notice was not untimely under O.C.G.A. § 40-6-392 because that Code section does not apply to situations where the notice and test precede an arrest. Joiner v. State, 239 Ga. App. 843, 522 S.E.2d 25 (1999).

- Although a videotape of a defendant's traffic stop did not show the officer reading the defendant the implied consent notice, the videotape's sound was poor and there were moments when both the officer and the defendant were off-camera. The officer was further heard telling the defendant that what happened would depend on the results of the test, implying that the officer had read the notice. Additionally, the officer testified at trial without objection that the officer had read the notice and that the defendant had consented. Rowell v. State, 312 Ga. App. 559, 718 S.E.2d 890 (2011), overruled on other grounds by State v. Turnquest, 305 Ga. 758, 827 S.E.2d 865 (2019).

- Because the defendant was involved in an accident which resulted in serious injuries and the investigating officer had probable cause to believe that the defendant was driving under the influence, the officer was not required to arrest the defendant before the reading of implied consent; however, if a different accident did not involve serious injuries, the suspect needed to be under arrest before the implied consent rights were read to the suspect. Hough v. State, 279 Ga. 711, 620 S.E.2d 380 (2005).

- Trial court erred in concluding that the state's breath tests relating to a charge of DUI against the defendant were not admissible and had to be suppressed on the ground that a police officer did not read the defendant's implied consent rights at the scene of the defendant's arrest in a local park; the defendant was not arrested in the local park for DUI, but instead was arrested for criminal trespass, and it was not until the defendant was taken to a detention center that the defendant was arrested for DUI at which time the officer read the implied consent rights to the defendant. State v. Jones, 261 Ga. App. 357, 583 S.E.2d 139 (2003).

- Under ordinary circumstances, the advice should be given at the time of the arrest or at a time as close in proximity to the instant of arrest as circumstances might warrant. Lee v. State, 177 Ga. App. 8, 338 S.E.2d 445 (1985), cert. denied, 476 U.S. 1116, 106 S. Ct. 1973, 90 L. Ed. 2d 657 (1986).

When a defendant was being treated for an injury and was awaiting a trip to the hospital; when the officer was concerned about the defendant's condition because the defendant was dazed and nauseated; and when the officer delayed charging the defendant until just before the ambulance was leaving, the officer was justified in advising the defendant after defendant's arrival at the hospital. The warning was given in close proximity to the arrest under the circumstances, and hence, evidence of the defendant's refusal to submit to testing was admissible. Lee v. State, 177 Ga. App. 8, 338 S.E.2d 445 (1985), cert. denied, 476 U.S. 1116, 106 S. Ct. 1973, 90 L. Ed. 2d 657 (1986).

Notification of one's implied consent rights is timely if given at a time as close in proximity to the instant of arrest as the circumstances of the individual case might warrant. Mason v. State, 177 Ga. App. 184, 338 S.E.2d 706 (1985).

Defendant, who was arrested at 1:28 p.m. and informed of defendant's rights at 1:46 p.m. on the same day, was informed of defendant's implied consent rights at a time enabling the defendant to exercise those rights in a meaningful fashion and the defendant's refusal to submit to chemical analysis was properly admitted in evidence. Highsmith v. City of Woodbury, 189 Ga. App. 58, 375 S.E.2d 79, cert. denied, 189 Ga. App. 912, 375 S.E.2d 79 (1988).

Arresting officer's failure to read implied consent rights to the defendant until 25 to 30 minutes after defendant first became aware of the defendant's condition was not improper since the rights were read after the defendant was taken to the police station and there arrested for driving under the influence. State v. Whitfield, 214 Ga. App. 574, 448 S.E.2d 492 (1994), overruled on other grounds by State v. Turnquest, 305 Ga. 758, 827 S.E.2d 865 (2019).

Delay in reading implied consent rights for five to ten minutes was not excessive when the defendant was not coherent at the scene of defendant's physical arrest. State v. Holmes, 224 Ga. App. 29, 479 S.E.2d 409 (1996).

Two-hour delay before the defendant was advised of the defendant's implied consent rights was not untimely since the delay was caused by a newly hired officer's call for assistance to confirm the officer's determination that the defendant was driving under the influence. Edge v. State, 226 Ga. App. 559, 487 S.E.2d 117 (1997), overruled on other grounds by Zilke v. State, 299 Ga. 232, 787 S.E.2d 745 (2016).

When there was a perceived threat of a fire or explosion at the accident scene and an apparent need for prompt medical transportation of the defendant for medical treatment, there was a fair risk that the defendant would not have been able to make an intelligent choice concerning the state's request for a blood test and the implied consent warning given at the hospital was timely given. Townsend v. State, 236 Ga. App. 530, 511 S.E.2d 587 (1999).

Implied consent warning must be given at a time as close in proximity to the instant of arrest as the circumstances of that particular case might warrant. Townsend v. State, 236 Ga. App. 530, 511 S.E.2d 587 (1999).

Although a police officer who detected a strong order of alcohol coming from the defendant who was standing over a motorcycle that was involved in an accident informed the defendant of the defendant's rights under Georgia's implied consent statute before the officer arrested the defendant for driving under the influence of alcohol, the appellate court found that the defendant was not free to leave at the time the implied consent warning was read to the defendant, and the court held that the reading of the notice satisfied the requirements of O.C.G.A. §§ 40-5-55,40-5-67.1(a), and40-6-392(a)(4). Oliver v. State, 268 Ga. App. 290, 601 S.E.2d 774 (2004).

O.C.G.A. § 40-5-67.1 implied consent notice given at the "time of arrest" under O.C.G.A. § 40-6-392 was timely when it preceded the formal arrest by a few seconds and the O.C.G.A. § 40-5-55(a) state-administered chemical testing, "Intoxilyzer 5000" testing, was done after the arrest. The "time of the arrest" included times as close in proximity to the instant of arrest as the circumstances of the individual case might warrant. Kahl v. State, 268 Ga. App. 879, 602 S.E.2d 888 (2004).

With regard to a defendant's conviction for driving under the influence and other related crimes, the trial court properly denied the defendant's motion to suppress field sobriety test results which the defendant based on being unreasonably detained without receiving the Miranda warnings as the defendant was not under arrest and the defendant's detainment while waiting for a second officer to arrive at the scene was not unreasonable nor unnecessary since the first officer who initiated the stop after observing the defendant driving erratically had a suspect in the patrol car. The court also found that the second officer timely gave the defendant the implied consent warnings after the defendant was arrested and had refused to submit to the breath test. Thomas v. State, 294 Ga. App. 108, 668 S.E.2d 540 (2008).

Hearing impaired person arrested for driving under the influence was not entitled to a qualified interpreter before that person's rights under the implied consent law were conveyed to the person by the arresting officer. State v. Webb, 212 Ga. App. 872, 443 S.E.2d 630 (1994).

Blood test results inadmissible When the arresting officer failed to comply with the procedure in O.C.G.A. § 40-6-392, such failure rendered blood test results inadmissible. State v. Woody, 215 Ga. App. 448, 449 S.E.2d 615 (1994).

- After a defendant's van hit a utility pole, an officer did not violate O.C.G.A. § 40-6-392(a)(3) by failing to reasonably accommodate the defendant's request for a breath test as the officer believed that the defendant could not complete a breath test due to serious injuries to the defendant's mouth and jaw. Since the defendant was not in police custody, but was a hospital patient, and consented to a blood test after first requesting a breath test, evidence of the blood test was admissible in a prosecution for driving under the influence. Fowler v. State, 294 Ga. App. 864, 670 S.E.2d 448 (2008), cert. denied, No. S09C0529, 2009 Ga. LEXIS 204 (Ga. 2009).

- Pursuant to O.C.G.A. § 40-5-67.1(d.1), a trial court did not err in denying the defendant's motion to suppress based upon the officer's failure to give an implied consent warning before the test was administered because the defendant voluntarily consented to the breath test. Jones v. State, 319 Ga. App. 520, 737 S.E.2d 318 (2013).

- Evidence of the defendant's refusal to take a breath test did not need to be excluded simply because the officer did not advise defendant of the defendant's rights. Lankford v. State, 204 Ga. App. 405, 419 S.E.2d 498 (1992), cert. denied, 506 U.S. 1051, 113 S. Ct. 972, 122 L. Ed. 2d 127 (1993).

Choice afforded a suspect under O.C.G.A. §§ 40-5-55 and40-6-392, either to agree or refuse to take a blood-alcohol test, is not protected by the privilege against self-incrimination, and the form signed by the defendant, agreeing to take a breath test, was likewise unprotected, such that the court erred in suppressing the form based on a police officer's failure to inform the defendant of the defendant's Miranda rights. State v. Mack, 207 Ga. App. 287, 427 S.E.2d 615 (1993).

An arresting officer was not required to read a defendant a Miranda warning during a traffic stop based on the officer's statement to the defendant that if the defendant did not blow into an alco-sensor properly, the officer would take the defendant to jail, because the defendant voluntarily consented to take the test and made several attempts before the officer made the statement. Rowell v. State, 312 Ga. App. 559, 718 S.E.2d 890 (2011), overruled on other grounds by State v. Turnquest, 305 Ga. 758, 827 S.E.2d 865 (2019).

- Trial court erred in suppressing the results of an alcohol test on the grounds that the results were not given to the defendant immediately after the test. There was no requirement in the procedural rules enacted pursuant to O.C.G.A. § 40-6-392(a)(1)(A) by the Division of Forensic Sciences that the results be given to defendant at any particular time. State v. Padidham, 310 Ga. App. 839, 714 S.E.2d 657 (2011).

- Trial court did not err in admitting into evidence the results of an intoximeter test performed on the defendant when the arresting officer could not recall the precise wording in which the officer gave the defendant the implied consent warnings. Cheevers v. Clark, 214 Ga. App. 866, 449 S.E.2d 528 (1994).

- Because the defendant refused to submit to the chemical test required by the arresting officer pursuant to O.C.G.A. § 40-5-55, the defendant was excluded from the discovery provisions of O.C.G.A. § 40-6-392(a)(4), and the trial court correctly denied the defendant's discovery request made pursuant to those provisions. Massey v. State, 331 Ga. App. 430, 771 S.E.2d 122 (2015), cert. denied, 2015 Ga. LEXIS 411 (Ga. 2015).

- Defendant presented no evidence showing that the state-administered blood test for drugs did not comply with O.C.G.A. § 40-6-39. The statutory scheme expressly authorizes law enforcement officers to request a chemical analysis of a person's blood for the purpose of determining the presence of drugs, provided that the chemical analysis complies with the requirements of O.C.G.A. § 40-6-392(a)(1)(A). Jackson v. State, 340 Ga. App. 228, 797 S.E.2d 152 (2017).

- Driver has the right to refuse to take a state-administered test subject to the legislative mandate that evidence of the exercise of that right shall be admissible in the driver's criminal trial. Nawrocki v. State, 235 Ga. App. 416, 510 S.E.2d 301 (1998).

- O.C.G.A. § 40-6-392 did not apply to the initial alcohol screening test used to determine probable cause to arrest drunk drivers and, thus, a police officer was not required to advise the defendant in a prosecution for driving under the influence of the defendant's right to an independent test before requesting that the defendant undergo preliminary screening; evidence regarding the defendant's pre-arrest refusal to undergo the alcohol screening test was admissible. Keenan v. State, 263 Ga. 569, 436 S.E.2d 475 (1993); Bravo v. State, 249 Ga. App. 433, 548 S.E.2d 129 (2001).

- Refusal to submit to a blood or urine test may be considered as positive evidence creating an inference that the test would show the presence of a prohibited substance. Albert v. State, 236 Ga. App. 146, 511 S.E.2d 244 (1999).

- Fact that a police officer other than the arresting officer advised the defendant of the defendant's rights did not form a basis for excluding the results of the defendant's intoximeter tests. State v. Buice, 176 Ga. App. 843, 338 S.E.2d 293 (1985).

Implied consent statute was not violated because an officer other than the arresting officer read the defendant the implied consent rights. Edge v. State, 226 Ga. App. 559, 487 S.E.2d 117 (1997), overruled on other grounds by Zilke v. State, 299 Ga. 232, 787 S.E.2d 745 (2016).

- Evidence merely that the officer informed the arrestee that the consequences of the arrestee's refusal to submit to a state-administered test could be suspension of the arrestee's driver's license for a period of "six to twelve months" in no way suggests that the officer purposely attempted to mislead the arrestee and the results of the defendant's blood-alcohol test were properly admitted into evidence. Whittington v. State, 184 Ga. App. 282, 361 S.E.2d 211 (1987).

- When a two-year-old child was killed in the accident and the officer was concerned that agitated relatives of the child gathered at the scene might be a threat to the defendant, it could not be said that the officer's waiting until the officer was driving away after having placed the defendant under arrest to advise the defendant of the defendant's rights was not timely. Hall v. State, 219 Ga. App. 871, 467 S.E.2d 206 (1996).

- Implied consent statute was properly implemented when the defendant was given the implied consent warnings when the defendant was arrested for driving with a suspended license but was not again given the implied consent warnings after the defendant took a breath test and was placed under arrest for driving under the influence. Parsons v. State, 190 Ga. App. 803, 380 S.E.2d 87 (1989).

Police officer was not required to again allow the defendant to consider the defendant's options once the defendant knew the defendant had failed an administered breath test by returning to the defendant the form which the defendant had previously reviewed, initialled, and signed so as to indicate the defendant's desire for an additional test. State v. Hull, 210 Ga. App. 72, 435 S.E.2d 284 (1993).

- When a defendant gives only the pretense of compliance with a blood-alcohol test, the defendant's actions are tantamount to a refusal to take the test, and the officer who attempted to give the test can testify regarding the defendant's refusal to take the test. Cadden v. State, 176 Ga. App. 377, 336 S.E.2d 266 (1985).

- Results of an alcohol concentration level test which was not performed at either the request or direction of a law enforcement officer are not subject to the dictates of O.C.G.A. § 40-6-392 and the party seeking to admit the test results must satisfy the court that the results are admissible pursuant to the rules of evidence. Oldham v. State, 205 Ga. App. 268, 422 S.E.2d 38, cert. denied, 205 Ga. App. 901, 422 S.E.2d 38 (1992).

Statute applies only to driving under the influence tests administered at the direction of a law enforcement officer, not tests administered pursuant to a search warrant, which by definition are issued at the direction of a judicial officer. Hynes v. State, 341 Ga. App. 500, 801 S.E.2d 306 (2017).

- Defendant was not in custody before an implied consent warning was given; the defendant knew that the defendant was being investigated for driving under the influence and had been told that the defendant was drunk, but the defendant had not been placed in a patrol car or handcuffed. Tune v. State, 286 Ga. App. 32, 648 S.E.2d 423 (2007).

- If the state wants to prosecute a party who allowed an intoxicated driver to operate an automobile in violation of the section governing driving under the influence, the state can use the intoximeter results obtained from the accused operator only if the state can prove that the state's evidence meets the statutory requirements for admissibility of O.C.G.A. § 40-6-392. Munda v. State, 172 Ga. App. 857, 324 S.E.2d 799 (1984).

Person charged with permitting another person to operate an automobile contrary to the law governing driving under the influence has standing to contest the admissibility of an intoximeter test under the section governing the introduction of such evidence. Munda v. State, 172 Ga. App. 857, 324 S.E.2d 799 (1984).

- Because the choice afforded a suspect under the implied consent statute does not rise to the level of constitutional self-incrimination, it is improper for a court to apply the "totality of circumstances" test. The issues to be determined are simply whether the officer told the suspect of the defendant's implied consent rights in a timely fashion and whether the suspect revoked the implied consent. State v. Highsmith, 190 Ga. App. 838, 380 S.E.2d 272, cert. denied, 190 Ga. App. 899, 380 S.E.2d 272 (1989).

- While the appeals court agreed that the trial court erred in denying the defendant's motion to suppress the results of the chemical test of the defendant's blood, the error was harmless as other evidence presented by the state, specifically the defendant's admission to being intoxicated and the testimony of other witnesses describing their observations, proved the defendant's intoxication. Harrelson v. State, 287 Ga. App. 664, 653 S.E.2d 98 (2007).

- Defendant was unable to show harm from the denial of a pretrial motion to dismiss evidence of a breath test administered before the defendant was read the implied consent rights as required by O.C.G.A. § 40-5-67.1(b)(2), and without being informed of the right to an independent chemical analysis as required by O.C.G.A. § 40-6-392(a)(4) because at trial, the trial court directed a verdict of acquittal on the charge of driving under the influence with a blood alcohol level higher than 0.08 percent. Hernandez v. State, 297 Ga. App. 177, 676 S.E.2d 795 (2009).

Subjective "less safe" test determines whether one is "under the influence" of intoxicating liquors. Harper v. State, 91 Ga. App. 456, 86 S.E.2d 7 (1955).

- It is reversible error for a trial court to quash a subpoena seeking the printout from a gas chromatograph; a subpoena is not required to obtain a printout from a gas chromatograph and a request for discovery directed to the state is adequate to prompt production of the printout, whether it is in the hands of the prosecutor or in the files of the state crime laboratory. Birdsall v. State, 254 Ga. App. 555, 562 S.E.2d 841 (2002).

- Trial court did not err in denying the defendant's motion for disclosure of scientific reports pursuant to O.C.G.A. § 40-6-392(a)(4) because intoxilyzer test results were provided to the defendant, and the defendant's discovery request was overbroad when the defendant sought information far beyond the scope of information to which the defendant was entitled under § 40-6-392(a)(4); the only discoverable information from an intoxilyzer test under § 40-6-392(a)(4) is the computer printout of the test result because unlike the gas chromatography test, which produces data that has to be interpreted by a chemist to determine blood alcohol level, an intoxilyzer does not produce raw data but rather prints out the actual test result showing the person's blood alcohol level, which means that the machine computes the test result. Stetz v. State, 301 Ga. App. 458, 687 S.E.2d 839 (2009).

Cited in Yawn v. State, 134 Ga. App. 77, 213 S.E.2d 178 (1975); Campbell v. State, 136 Ga. App. 338, 221 S.E.2d 212 (1975); Ware v. State, 137 Ga. App. 673, 224 S.E.2d 873 (1976); Abercrombie v. State, 138 Ga. App. 536, 226 S.E.2d 763 (1976); Martin v. State, 139 Ga. App. 8, 228 S.E.2d 15 (1976); Morris v. State, 139 Ga. App. 630, 229 S.E.2d 110 (1976); Johnson v. City of Albany, 413 F. Supp. 782 (M.D. Ga. 1976); Hunter v. State, 141 Ga. App. 276, 233 S.E.2d 252 (1977); Loar v. State, 142 Ga. App. 875, 237 S.E.2d 237 (1977); Hunter v. State, 143 Ga. App. 541, 239 S.E.2d 212 (1977); State v. Baker, 146 Ga. App. 608, 247 S.E.2d 160 (1978); McElwee v. State, 147 Ga. App. 84, 248 S.E.2d 162 (1978); Longino v. Cofer, 148 Ga. App. 341, 251 S.E.2d 113 (1978); Chase v. State, 148 Ga. App. 690, 252 S.E.2d 194 (1979); State v. Laycock, 151 Ga. App. 145, 259 S.E.2d 150 (1979); Ensley v. Jordan, 244 Ga. 435, 260 S.E.2d 480 (1979); Hardison v. Chastain, 151 Ga. App. 678, 261 S.E.2d 425 (1979); Jackson v. State, 152 Ga. App. 441, 263 S.E.2d 181 (1979); Terry v. Liberty Mut. Ins. Co., 152 Ga. App. 583, 263 S.E.2d 475 (1979); Holloway v. McElroy, 474 F. Supp. 1363 (M.D. Ga. 1979); Adams v. Hardison, 153 Ga. App. 152, 264 S.E.2d 693 (1980); Collins v. State, 154 Ga. App. 651, 269 S.E.2d 509 (1980); Mulling v. State, 156 Ga. App. 404, 274 S.E.2d 770 (1980); Tolbert v. Hicks, 158 Ga. App. 642, 281 S.E.2d 368 (1981); Hartley v. State, 159 Ga. App. 157, 282 S.E.2d 684 (1981); Felchlin v. State, 159 Ga. App. 120, 282 S.E.2d 743 (1981); Garner v. State, 159 Ga. App. 244, 282 S.E.2d 909 (1981); Chumley v. State, 160 Ga. App. 619, 287 S.E.2d 630 (1981); Tucker v. State, 249 Ga. 323, 290 S.E.2d 97 (1982); Beaman v. State, 161 Ga. App. 129, 291 S.E.2d 244 (1982); State v. Johnston, 249 Ga. 413, 291 S.E.2d 543 (1982); Bailey v. State, 249 Ga. 535, 291 S.E.2d 704 (1982); Hardison v. Haslam, 250 Ga. 59, 295 S.E.2d 830 (1982); Smith v. State, 164 Ga. App. 624, 298 S.E.2d 587 (1982); State v. Chumley, 164 Ga. App. 828, 299 S.E.2d 564 (1982); Reliance Ins. Co. v. Bridges, 168 Ga. App. 874, 311 S.E.2d 193 (1983); Epps v. State, 169 Ga. App. 157, 312 S.E.2d 146 (1983); Higginbotham v. State, 170 Ga. App. 80, 316 S.E.2d 181 (1984); Parker v. State, 170 Ga. App. 655, 317 S.E.2d 891 (1984); Patton v. State, 170 Ga. App. 807, 318 S.E.2d 231 (1984); Quaile v. State, 172 Ga. App. 421, 323 S.E.2d 281 (1984); State v. Strickman, 173 Ga. App. 1, 325 S.E.2d 775 (1984); Horah v. State, 173 Ga. App. 306, 325 S.E.2d 917 (1985); Roberts v. State, 173 Ga. App. 614, 327 S.E.2d 743 (1985); Rielli v. State, 174 Ga. App. 220, 330 S.E.2d 104 (1985); Mitchell v. State, 174 Ga. App. 594, 330 S.E.2d 798 (1985); Riley v. State, 174 Ga. App. 607, 330 S.E.2d 808 (1985); Atkins v. State, 175 Ga. App. 470, 333 S.E.2d 441 (1985); Manning v. State, 175 Ga. App. 738, 334 S.E.2d 338 (1985); Drayton v. State, 175 Ga. App. 803, 334 S.E.2d 720 (1985); Cadden v. State, 176 Ga. App. 377, 336 S.E.2d 266 (1985); Paul v. State, 176 Ga. App. 524, 336 S.E.2d 379 (1985); State v. Carter, 176 Ga. App. 872, 338 S.E.2d 300 (1985); Little v. State, 178 Ga. App. 268, 342 S.E.2d 712 (1986); State v. Brown, 178 Ga. App. 307, 342 S.E.2d 779 (1986); Hogan v. State, 178 Ga. App. 534, 343 S.E.2d 770 (1986); Campbell v. State, 178 Ga. App. 814, 344 S.E.2d 745 (1986); State v. Greene, 178 Ga. App. 875, 344 S.E.2d 771 (1986); Smith v. State, 180 Ga. App. 309, 349 S.E.2d 4 (1986); Farmer v. State, 180 Ga. App. 720, 350 S.E.2d 583 (1986); Duffee v. State, 184 Ga. App. 247, 361 S.E.2d 239 (1987); Williams v. Hart, 83 Bankr. 840 (Bankr. M.D. Ga. 1987); Odom v. State, 185 Ga. App. 496, 364 S.E.2d 626 (1988); Smith v. State, 185 Ga. App. 531, 364 S.E.2d 907 (1988); Clough v. Lively, 186 Ga. App. 415, 367 S.E.2d 295 (1988); Collum v. State, 186 Ga. App. 822, 368 S.E.2d 578 (1988); Brooks v. State, 187 Ga. App. 194, 369 S.E.2d 801 (1988); Buffington v. State, 190 Ga. App. 365, 378 S.E.2d 884 (1989); Watkins v. State, 191 Ga. App. 87, 381 S.E.2d 45 (1989); Potts v. State, 191 Ga. App. 75, 381 S.E.2d 99 (1989); Holcomb v. State, 191 Ga. App. 379, 381 S.E.2d 594 (1989); Hunter v. State, 191 Ga. App. 769, 382 S.E.2d 679 (1989); Koulianos v. State, 192 Ga. App. 90, 383 S.E.2d 642 (1989); Ross v. State, 192 Ga. App. 850, 386 S.E.2d 721 (1989); Ussery v. State, 195 Ga. App. 394, 393 S.E.2d 522 (1990); Shults v. State, 195 Ga. App. 525, 394 S.E.2d 573 (1990); Abdsharafat v. State, 195 Ga. App. 837, 395 S.E.2d 61 (1990); Menendez v. Jewett, 196 Ga. App. 565, 396 S.E.2d 294 (1990); Parker v. State, 198 Ga. App. 838, 403 S.E.2d 897 (1991); Fowler v. State, 200 Ga. App. 505, 408 S.E.2d 449 (1991); Hurd v. State, 201 Ga. App. 373, 411 S.E.2d 111 (1991); Daras v. State, 201 Ga. App. 512, 411 S.E.2d 367 (1991); Bowden v. State, 202 Ga. App. 802, 415 S.E.2d 527 (1992); Holloman v. State, 203 Ga. App. 476, 416 S.E.2d 839 (1992); Pippins v. State, 204 Ga. App. 318, 419 S.E.2d 28 (1992); Tibbs v. State, 207 Ga. App. 273, 427 S.E.2d 603 (1993); Clapsaddle v. State, 208 Ga. App. 840, 432 S.E.2d 262 (1993); Wells v. State, 210 Ga. App. 165, 435 S.E.2d 523 (1993); Gregg v. State, 216 Ga. App. 135, 453 S.E.2d 499 (1995); Walton v. State, 217 Ga. App. 11, 456 S.E.2d 289 (1995); Shelter Mut. Ins. Co. v. Bryant, 220 Ga. App. 526, 469 S.E.2d 792 (1996); Renschen v. State, 225 Ga. App. 678, 484 S.E.2d 753 (1997); Fruhling v. State, 233 Ga. App. 544, 505 S.E.2d 47 (1998); Lambropoulous v. State, 234 Ga. App. 625, 507 S.E.2d 225 (1998); State v. Kaylor, 234 Ga. App. 495, 507 S.E.2d 233 (1998); Mackey v. State, 234 Ga. App. 554, 507 S.E.2d 482 (1998); Walker v. State, 239 Ga. App. 831, 521 S.E.2d 861 (1999); Gallimore v. State, 242 Ga. App. 374, 529 S.E.2d 668 (2000); Klink v. State, 272 Ga. 605, 533 S.E.2d 92 (2000); Hulsey v. Northside Equities, Inc., 249 Ga. App. 474, 548 S.E.2d 41 (2001); State v. Lentsch, 252 Ga. App. 655, 556 S.E.2d 248 (2001), recons. denied; overruled on other grounds by State v. Turnquest, 305 Ga. 758, 827 S.E.2d 865 (2019); Satterfield v. State, 252 Ga. App. 525, 556 S.E.2d 568 (2001); Johnson v. State, 261 Ga. App. 633, 583 S.E.2d 489 (2003); Dozier v. Pierce, 279 Ga. App. 464, 631 S.E.2d 379 (2006); Stadnisky v. State, 285 Ga. App. 33, 645 S.E.2d 545 (2007); Dodds v. State, 288 Ga. App. 231, 653 S.E.2d 828 (2007); Taylor v. State, 337 Ga. App. 486, 788 S.E.2d 97 (2016).

Constitutionality

Constitutionality.

- See Garrett v. Department of Pub. Safety, 237 Ga. 413, 228 S.E.2d 812 (1976).

Supreme Court's refusal to review a constitutional challenge to O.C.G.A. § 40-6-392 for mandating a presumption of intoxication if the alcoholic test reading is above .10 rendered such a contention without merit. McCann v. State, 167 Ga. App. 368, 306 S.E.2d 681 (1983), cert. denied, 464 U.S. 1044, 104 S. Ct. 712, 79 L. Ed. 2d 174 (1984).

- Defendant, a Spanish speaking person, who claimed constitutional violations to the implied consent statutes were without merit since the defendant was not similarly situated to a hearing impaired person and, although similarly situated to an English speaking person, there was a rational basis for requiring the implied consent warnings to be read in English. Rodriguez v. State, 275 Ga. 283, 565 S.E.2d 458 (2002).

- Since, under the Constitution of Georgia, the state may constitutionally take a blood sample from a defendant without defendant's consent, O.C.G.A. §§ 40-5-55 (see now O.C.G.A. § 40-5-67.1) and40-6-392 grant, rather than deny, a right to a defendant by providing for refusal to take such a test. Allen v. State, 254 Ga. 433, 330 S.E.2d 588 (1985).

Choice provided to a DUI defendant under Georgia law - submitting to a blood-alcohol test or refusing to submit, with resultant sanctions - is not so painful, dangerous, or severe, or so violative of religious beliefs, that no choice actually exists, and does not amount to compulsion on behalf of the state or a violation of due process. Allen v. State, 254 Ga. 433, 330 S.E.2d 588 (1985).

- Nothing in the implied consent law prohibits an officer from advising a driver of the defendant's implied consent rights and requesting multiple chemical tests at one time, and such a request would not violate the Fourth Amendment as an unreasonable attempt to "shop" through the defendant's bodily fluids in search of evidence. McKeown v. State, 187 Ga. App. 685, 371 S.E.2d 243 (1988).

- Under Ga. L. 1974, p. 633, § 1 (see now O.C.G.A. § 40-6-392), procedural due process rights are afforded a driver before the driver is deprived of any rights or privileges. Cogdill v. Department of Pub. Safety, 135 Ga. App. 339, 217 S.E.2d 502 (1975).

Trial court properly denied the defendant's amended motion for a new trial, holding that the administration of breath tests pursuant to Ga. Comp. R. & Regs. 92-3-.06(12)(b) did not violate the due process clause under both U.S. Const., amend. 5 or Ga. Const. 1983, Art. I, Sec. I, Para. I given that: (1) the claim was raised for the first time within the new trial motion, and was thus untimely; (2) the defendant had an alternative remedy under the Georgia Administrative Procedure Act, O.C.G.A. § 50-13-1; (3) the defendant failed to show that the Division of Forensic Sciences (DFS) eliminated meaningful procedures for conducting breath tests when it promulgated the rule; and (4) the techniques and methods approved by DFS were sufficient to ensure fair and accurate testing. Palmaka v. State, 280 Ga. App. 761, 634 S.E.2d 883 (2006).

State's failure to immediately inform a defendant of the results of the state-administered test does not create a situation where the defendant is left with no, or so little, information that he or she is denied any meaningful choice in violation of due process; driving under the influence defendants must determine, often under difficult and stressful circumstances, whether to request an independent test, and that the choice may be difficult does not render it fundamentally unfair and this fact alone does not support a due process claim. Padidham v. State, 291 Ga. 99, 728 S.E.2d 175 (2012).

- Presumptions created by statute do not constitute denial of due process and equal protection by being burden shifting when these "presumptions" are modified in the charge to the jury as, in reality, being only "rebuttable presumptions or inferences." Olsen v. State, 168 Ga. App. 296, 308 S.E.2d 703 (1983).

- Charge on driving under the influence of alcohol does not impermissibly direct the return of a verdict of guilty on the basis of the statutory presumptions of intoxication when the jury is instructed that the statutory presumptions are rebuttable. Clark v. State, 169 Ga. App. 535, 313 S.E.2d 748 (1984).

Presumptions created by O.C.G.A. § 40-6-392 do not constitute a denial of due process of law. Melton v. State, 175 Ga. App. 472, 333 S.E.2d 682 (1985).

Former paragraph (b)(4) of O.C.G.A. § 40-6-392 regarding the effect of a finding of a blood alcohol reading of .12 or more does not create a constitutionally impermissible presumption of guilt. Turrentine v. State, 176 Ga. App. 145, 335 S.E.2d 630 (1985).

Former paragraph (b)(3) of O.C.G.A. § 40-6-392 does not create an unconstitutional, burden-shifting presumption that a person with 0.10 grams of alcohol per liter of blood is "under the influence" of alcohol. Lattarulo v. State, 261 Ga. 124, 401 S.E.2d 516 (1991), cert. denied, 502 U.S. 823, 112 S. Ct. 86, 116 L. Ed. 2d 59 (1991).

O.C.G.A. § 40-6-392 does not offend a defendant's right of confrontation because the admissibility of inspection certificates on breath testing devices, as provided by subsection (f), is based on the hearsay exception for business records. Brown v. State, 268 Ga. 76, 485 S.E.2d 486 (1997); Rowell v. State, 229 Ga. App. 397, 494 S.E.2d 5 (1997); Jackson v. State, 233 Ga. App. 568, 504 S.E.2d 505 (1998).

Because the classification of persons qualified to draw blood and the records showing such classification are regulated under Department of Human Resources rules, subsection (e) O.C.G.A. § 40-6-392 creates a public records exception to the hearsay rule, and therefore the certification required by that statute does not violate the confrontation clause. Price v. State, 269 Ga. 222, 498 S.E.2d 262 (1998), recons. denied; overruled on other grounds by State v. Turnquest, 305 Ga. 758, 827 S.E.2d 865 (2019).

Certificate of inspection for approved breath testing instrument that was properly prepared and executed was self authenticating, notwithstanding any other provision of law, was admissible, and did not deny the defendant the constitutional right to confront witnesses against the defendant. Madden v. State, 252 Ga. App. 164, 555 S.E.2d 832 (2001).

Admission of self-authenticating certificates of inspection for the Intoxilyzer 5000 used to test the defendant's breath was proper as the certificates were required by O.C.G.A. § 40-6-392(f), the certificates qualified as business records under former O.C.G.A. § 24-3-14 (see now O.C.G.A. § 24-8-803), and the certificates did not violate the defendant's confrontation rights under U.S. Const., amend. 6. Neal v. State, 281 Ga. App. 261, 635 S.E.2d 864 (2006).

- Because the defendant was not compelled by the state to submit to a breath test after the defendant's arrest, the admission at trial of the test results did not violate the defendant's right against self-incrimination. Fantasia v. State, 268 Ga. 512, 491 S.E.2d 318 (1997).

- Legislature is authorized to classify and treat alcohol differently from other drugs and the defendant cannot complain if drug users are not entitled to have qualified persons conduct the tests. Head v. State, 246 Ga. 360, 271 S.E.2d 452 (1980).

- Argument that former Code 1933, Ch. 68A (see now O.C.G.A. Ch. 6, T. 40) violated due process by failing to require distributors of alcoholic beverages to label their products so as to put a consumer on notice as to what quantity of the beverage was required in a given time period to raise the level of alcohol to that prohibited by law was without merit. Head v. State, 246 Ga. 360, 271 S.E.2d 452 (1980).

- Neither the federal nor the state constitutional guarantee of due process requires the state to preserve a sample of the breath used in the administration of the auto-intoximeter test. Hopper v. State, 175 Ga. App. 358, 333 S.E.2d 201 (1985).

- Defendant, who was denied a second chemical test on the ground that the defendant did not have on the defendant's person sufficient currency with which to pay the $38 cost of the test, lacked standing to attack the state's implied consent law as unconstitutional in denying an indigent person a second chemical test at public expense, absent any proof of the defendant's own indigency. Taylor v. State, 261 Ga. 415, 405 S.E.2d 496 (1991); Stone v. State, 262 Ga. 687, 424 S.E.2d 787 (1993).

- Trial court's denial of defendant's motion to suppress was reversed because Georgia Supreme Court concluded that Ga. Const. art. I, § 1, para. XVI precluded admission of evidence that suspect refused to consent to breath test, thus, O.C.G.A. §§ 40-5-67.1(b) and40-6-392(d) were unconstitutional to the extent that they allow defendant's refusal to submit to a breath test to be admitted into evidence at criminal trial. Elliott v. State, 305 Ga. 179, 824 S.E.2d 265 (2019)(decided under former version of Code Section40-6-392).

Georgia Supreme Court concluded that Ga. Const. art. I, Sec. I, Para. XVI precluded admission of evidence that suspect refused to consent to a breath test, thus, O.C.G.A. §§ 40-5-67.1(b) and40-6-392(d) were unconstitutional to extent that they allow defendant's refusal to submit to breath test to be admitted into evidence at criminal trial. Elliott v. State, 305 Ga. 179, 824 S.E.2d 265 (2019)(decided under former version of Code Section40-6-392).

Performance of Tests

Application of 1995 amendment.

- Requirement imposed under the 1995 amendment of O.C.G.A. § 40-6-392 that for a test to be considered valid the test must be conducted "on a machine which was operated with ... components ... attached and in good working order" applied to a pending prosecution, and when the test was given on a machine on which a component prescribed by the manufacturer had been disabled and overridden, the test was not valid. State v. Hunter, 221 Ga. App. 837, 473 S.E.2d 192 (1996).

Because a prosecution for driving under the influence was pending when the 1995 amendment of O.C.G.A. § 40-6-392 regarding the requirements for certification was approved by the governor, the provisions applied even though it was impossible for the police to have complied with them. Hobbs v. State, 224 Ga. App. 314, 480 S.E.2d 330 (1997).

- There is no provision of law which makes it mandatory for the state to subject a person arrested for driving under the influence of intoxicants to a test to determine the alcoholic content of the person's blood in the absence of demand. Hendrix v. State, 125 Ga. App. 327, 187 S.E.2d 557 (1972).

Showing that test not completed within "operator's judgment" is not evidence of "refusal to submit." Burson v. Collier, 226 Ga. 427, 175 S.E.2d 660 (1970).

- State is required to show that the machine on which blood tests were conducted was operated with all the machine's electronic and operating parts properly attached and in good working order. Banks v. State, 235 Ga. App. 701, 509 S.E.2d 63 (1998).

- O.C.G.A. § 40-5-67.1, read in pari materia with O.C.G.A. §§ 40-5-55 and40-6-392, authorizes a law enforcement officer to designate the appropriate chemical test to be administered - breath, blood, urine, or other bodily substance - for the detection of the source of impairment as suspected by the officer. State v. Hunter, 221 Ga. App. 837, 473 S.E.2d 192 (1996).

- Intoximeter which determines the amount of alcohol in one's breath (by whatever means) and calculates therefrom the blood-alcohol content performs a "chemical analysis" or "chemical test." Fisher v. State, 177 Ga. App. 465, 339 S.E.2d 744 (1986).

- Bureau of Investigation Division of Forensic Sciences substantially complied with the requirements of the Administrative Procedure Act in amending regulations permitting the use of a breath test instrument. Corner v. State, 223 Ga. App. 353, 477 S.E.2d 593 (1996).

- Breath-alcohol test is as conclusive as a blood-alcohol test in determining the amount of alcohol in a person's blood and the results from a breath test can be the basis of a conviction for driving while under the influence of alcohol. Fudge v. State, 184 Ga. App. 590, 362 S.E.2d 147 (1987).

Subsection (a) of O.C.G.A. § 40-6-392 makes it clear that a breath test is used to determine the amount of alcohol in a person's blood. Herndon v. State, 187 Ga. App. 313, 370 S.E.2d 164 (1988).

Trial court properly reversed administrative suspension of a driver's license when the evidence did not show that the driver's breath test was properly administered as two breath samples were required to verify the accuracy of the breathalyzer. Ga. Dep't of Pub. Safety v. Robinette, 254 Ga. App. 884, 564 S.E.2d 726 (2002).

"Qualified person" requirement of O.C.G.A. § 40-6-392 applies to all blood test results showing drug content as well as alcoholic content. Carr v. State, 222 Ga. App. 776, 476 S.E.2d 75 (1996).

State was not required to prove that the person who drew the defendant's blood after the defendant was suspected of having swallowed cocaine the defendant was carrying and consented to a blood test was "qualified" to perform the test before the testimony of a forensic toxicologist could be admitted into evidence as that requirement only related to chemical tests performed where the state sought to prove that a defendant was driving under the influence, and the defendant was charged with cocaine possession and not with driving under the influence. Millsap v. State, 261 Ga. App. 427, 582 S.E.2d 568 (2003).

- O.C.G.A. § 40-6-392 does not demand that the examiner have an expert's knowledge of the underlying scientific principles governing the functioning of the machine. Dotson v. State, 179 Ga. App. 233, 345 S.E.2d 871 (1986) ??? Gutierrez v. State, 228 Ga. App. 458, 491 S.E.2d 898 (1997).

Testimony by a toxicologist that the toxicologist was familiar with the workings of the urinalysis machine and that the machine was in good working order was sufficient to establish such fact for the jury; O.C.G.A. § 40-6-392 does not require that a toxicologist have an expert's knowledge of the underlying scientific principles governing the functioning of the machine. Helmeci v. State, 230 Ga. App. 866, 498 S.E.2d 326 (1998).

- When a licensed mortician who extracted blood from the deceased after a fatal accident testified to being in the mortician business for years and receiving training at the John College of Mortuary Science in Nashville, Tennessee, such technician was a qualified person under O.C.G.A. § 40-6-392. Clark v. Jefferson Pilot Life Ins. Co., 209 Ga. App. 93, 432 S.E.2d 815 (1993).

- Full-time employee of a medical center whose only job was to "draw blood" and who had trained at the center to perform this function was a "qualified person" within the meaning of Ga. L. 1974, p. 633, § 1 (see now O.C.G.A. § 40-6-392). Gooch v. State, 155 Ga. App. 708, 272 S.E.2d 572 (1980).

- Requirements in O.C.G.A. § 40-6-392 apply to a blood test requested by a law enforcement officer but analyzed by a hospital. State v. Padgett, 329 Ga. App. 747, 766 S.E.2d 143 (2014).

- Testing of blood samples by a forensic chemist with the Division of Forensic Sciences, using a method approved by the division, satisfied the requirements of O.C.G.A. § 40-6-392. Lewis v. State, 215 Ga. App. 486, 451 S.E.2d 116 (1994); Jordan v. State, 223 Ga. App. 176, 477 S.E.2d 583 (1996); Morrissette v. State, 229 Ga. App. 420, 494 S.E.2d 8 (1997); Bailey v. State, 229 Ga. App. 869, 494 S.E.2d 672 (1998).

Technician was a "qualified person" to administer a breath test when the technician took a course in breath analysis, trained on the machine used to test the defendant, and was certified by the police academy. Eubanks v. State, 175 Ga. App. 244, 333 S.E.2d 3 (1985).

- Department of Human Resources certificate signed by a reviewing official and stating that the person who drew the defendant's blood was classified as a medical laboratory technician was in substantial compliance with the requirement of O.C.G.A. § 40-6-392 regarding proof of the technician's qualifications. Bazemore v. State, 225 Ga. App. 741, 484 S.E.2d 673 (1997).

- Testimony of an unlicensed crime lab technician as to the technician's tasks in the initial screening test was admissible when the technician did not offer any opinion as to chemical analysis, or interpret any testing, nor make any report as to the results of testing; the technician's duties were done in accordance with lab procedure, under supervision of a doctor, and did not constitute actual performance of the chemical analysis. Martin v. State, 214 Ga. App. 614, 448 S.E.2d 471 (1994).

More than one test may be requested by the accused, for example a breath test and a blood test. Failure to allow the defendant an additional test or tests, absent a finding that such failure is "justifiable," is a violation of O.C.G.A. § 40-6-392 and precludes the state's use of the state's tests. Turner v. State, 199 Ga. App. 466, 405 S.E.2d 296 (1991).

There is nothing about the plain language of either O.C.G.A. § 40-5-67.1(b)(3) or paragraph (b)(2) of O.C.G.A. § 40-6-392 which would preclude the defendant from affirmatively choosing to have the state's qualified testing officer perform an additional breath test at the defendant's expense. Nawrocki v. State, 235 Ga. App. 416, 510 S.E.2d 301 (1998).

- State is under no duty to show the defendant's affirmative waiver of an additional chemical test. A duty is placed upon an officer who administers or causes to be administered a chemical test for alcoholic content in bodily fluids to advise the testee that the testee is entitled to an independent test of the testee's own choosing, and once that duty is fulfilled by the officer, the statutory obligation is satisfied. State v. Griffin, 204 Ga. App. 459, 419 S.E.2d 528 (1992).

- It is necessary for the arresting officer to notify the driver of the driver's right to have an additional test made before the driver could be burdened with the responsibility of having to request the test. Nelson v. State, 135 Ga. App. 212, 217 S.E.2d 450 (1975); Garrett v. Department of Pub. Safety, 237 Ga. 413, 228 S.E.2d 812 (1976).

In order to utilize the results of a blood-alcohol test to establish criminal liability against a defendant, it must be shown that the defendant was advised of his or her right to have additional tests made, but this rule does not apply to a person who is not a defendant. Johnson v. State, 146 Ga. App. 835, 247 S.E.2d 513 (1978).

Rights contemplated by O.C.G.A. § 40-6-392 include a warning that the suspect has a right to an individual and independent test to corroborate or contest the state-administered test. State v. Johnston, 160 Ga. App. 71, 286 S.E.2d 47 (1981), aff'd, 249 Ga. 413, 291 S.E.2d 543 (1982).

When a law enforcement officer requests a person to submit to a chemical test because of acts alleged to have been committed while operating a motor vehicle under the influence of alcohol or drugs, and the officer arrests that person on this ground, the officer must inform the person at the time of arrest of the person's right to an independent chemical analysis to determine the amount of alcohol or drugs present in the person's blood. Perano v. State, 250 Ga. 704, 300 S.E.2d 668 (1983).

- Officer's advice to the defendant that, "[a]fter submitting to the required testing, you are entitled to additional chemical tests at your own expense" was deficient because the advice completely failed to inform the defendant that the defendant could choose the defendant's own qualified person to administer the additional test. State v. Causey, 215 Ga. App. 85, 449 S.E.2d 639 (1994).

- It is incumbent on the trial court to determine whether a failure or inability to obtain an additional test is justified. In making that determination, the trial court must decide if, under the totality of the circumstances, the officer made a reasonable effort to accommodate the accused who seeks an independent test. Factors to be considered include, but are not limited to, the following: (1) availability of or access to funds or resources to pay for the requested test; (2) a protracted delay in the giving of the test if the officer complies with the accused's request; (3) availability of police time and other resources; (4) location of requested facilities; and (5) opportunity and ability of the accused to make arrangements personally for the testing. Wells v. State, 210 Ga. App. 165, 435 S.E.2d 523 (1993).

Defendant's right to an independent blood alcohol content test under O.C.G.A. § 40-6-392(a)(3) was not invoked by asking the officer if the defendant could blow again because the defendant admitted that, at the time, the defendant did not know there was a difference between an independent test and the state's test and that the defendant was satisfied when the officer said that the defendant could blow again down at the station. Waterman v. State, 299 Ga. App. 630, 683 S.E.2d 164 (2009).

O.C.G.A. § 40-6-392(a)(4), with regard to an independent chemical test of blood, specifies no deadline for requesting full information, no timetable for supplying the information, and no penalty for the state's failure to produce the information. State v. Thompson, 334 Ga. App. 692, 780 S.E.2d 67 (2015).

- When the defendant requested an independent test be performed and the officer suggested that the defendant telephone the only facility in the county which performed independent chemical analysis, to find out the procedure and the price and make the necessary arrangements, and when the officer dialed the telephone number for the facility, the facts support the trial court's findings that the officer made a reasonable effort to accommodate the defendant's efforts to obtain an independent test and that the defendant was not impeded from doing so by any conduct on the part of law enforcement. Pruitt v. State, 203 Ga. App. 125, 416 S.E.2d 524, cert. denied, 203 Ga. App. 907, 416 S.E.2d 524 (1992).

When there was no evidence that there was a hospital in the locality of the defendant's arrest which would have performed a blood test on the defendant without a doctor's order if the officer had transported the defendant there, there was no corresponding duty on behalf of the officer to transport the defendant to that hospital, and the officer satisfied the officer's duty by informing the defendant of the right to an independent test and giving the defendant the opportunity to make arrangements for one by providing the defendant with a telephone and a telephone book. Wells v. State, 210 Ga. App. 165, 435 S.E.2d 523 (1993).

While an officer must not prevent a defendant from exercising the right to an independent test, it is not the officer's duty to ensure the performance of such a test. Crawford v. City of Forest Park, 215 Ga. App. 234, 450 S.E.2d 237 (1994).

After advising a driver of the right to an independent chemical test, an officer was not required to ask the driver where and by whom the driver wished the test performed and, after the driver chose an independent test, but did not specify any choice of personnel, the officer's action in taking the driver to the nearest hospital was reasonable. McDaniel v. State, 218 Ga. App. 555, 462 S.E.2d 446 (1995); Wells v. State, 227 Ga. App. 521, 489 S.E.2d 307 (1997).

Officer's refusal to take the defendant to a reasonably close facility as requested by the defendant on the sole basis that the officer was unfamiliar with the area in which the hospital was located was not, in and of itself, sufficient grounds to deny the defendant's request for an independent test by personnel of the defendant's own choosing. Joel v. State, 245 Ga. App. 750, 538 S.E.2d 847 (2000).

Motion to suppress breath test results was upheld after the booking officer denied the defendant an opportunity to have an independent test, under O.C.G.A. § 40-6-392(a)(3), on the rationale that the booking officer needed to ask the arresting officer for advisement, and the booking officer made no effort to satisfy the defendant's request, forcing the defendant to believe that it was too late to receive an independent test. State v. Braunecker, 255 Ga. App. 685, 566 S.E.2d 409 (2002).

Defendant's conviction for underage driving under the influence (blood alcohol content) was reversed as the trial court improperly denied the defendant's motion in limine premised on the arresting officer's failure to provide the defendant with an independent chemical test of the defendant's blood after the defendant plainly requested one; that the defendant's request for a blood test was made prior to the defendant's arrest and the giving of the implied consent warnings was not determinative under these facts and the officer's failure to inquire into the defendant's request for an independent test required the suppression of the results of the state-administered test. McGinn v. State, 268 Ga. App. 450, 602 S.E.2d 209 (2004).

- It is sufficient that the defendant was fully advised of the defendant's obligation to submit to a test, the consequences of refusal to do so, and the defendant's right to have an independent test of the various bodily substances made by personnel of the defendant's own choosing. Howard v. Cofer, 150 Ga. App. 579, 258 S.E.2d 195 (1979).

When the driver was suspected of intoxication, the driver was not entitled to a warning which tracked the exact language of Ga. L. 1974, p. 633, § 1 (see O.C.G.A. § 40-6-392), requiring suspension of a license for failure to submit to a test. Ivie v. State, 151 Ga. App. 496, 260 S.E.2d 543 (1979); Martin v. State, 214 Ga. App. 614, 448 S.E.2d 471 (1994).

- O.C.G.A. § 40-5-67.1, construed with O.C.G.A. §§ 40-5-55 and40-6-392, does not require blood or breath testing before an officer may require a suspect to provide a urine sample for analysis for the presence of alcohol, drugs, or marijuana. State v. Sumlin, 224 Ga. App. 205, 480 S.E.2d 260 (1997).

- Since initial alcohol screening tests are not governed by O.C.G.A. § 40-6-392 and since the motorist was not under arrest at the time the screening test was administered, there was no requirement that the administration of the screening test be preceded by advising the motorist of the motorist's right to an independent test. Turrentine v. State, 176 Ga. App. 145, 335 S.E.2d 630 (1985).

- Although law enforcement officers are required to make reasonable efforts to accommodate requests for independent tests, it is not the officers' duty to ensure that the independent test was performed. Thornhill v. State, 202 Ga. App. 826, 415 S.E.2d 473 (1992).

- State-administered breath test results were admissible despite defendant's request for an independent test because the evidence showed that the officer was willing to take defendant for another test but that the defendant refused to go with the arresting officer, demanding another driver, and none was available. Luckey v. State, 313 Ga. App. 502, 722 S.E.2d 114 (2012).

- Simple form, completed, signed, and dated by the accused or an equivalent mechanism will suffice to establish that the accused has either availed oneself of the accused's opportunity to undertake an additional chemical test or waived that right. Steed v. City of Atlanta, 172 Ga. App. 839, 325 S.E.2d 165 (1984).

- If arrestee was not willing to have the determination of the arrestee's blood-alcohol level "at the alleged time" rest exclusively upon the results of the state's intoximeter examination, the arrestee was free to have a qualified person of the arrestee's own choosing administer an additional test. State v. Richardson, 186 Ga. App. 888, 368 S.E.2d 825 (1988).

Paragraph (a)(3) of O.C.G.A. § 40-6-392 allows one accused of driving under the influence of alcoholic beverages the right to have a chemical analysis of one's blood and urine by a qualified person of one's own choosing, and there is a corresponding duty on the part of law enforcement officers not to refuse or fail to allow the accused to exercise that right. State v. Griffin, 204 Ga. App. 459, 419 S.E.2d 528 (1992).

- Right to have an additional test must be made known to the defendant at the time of arrest in order that the defendant may, if the defendant so chooses, challenge the accuracy of the chemical test administered by the state. Nelson v. State, 135 Ga. App. 212, 217 S.E.2d 450 (1975).

Legislature intended that the right to have additional test made be made known to the defendant at the time of arrest in order that the defendant may, if the defendant so chooses, challenge the accuracy of the chemical test administered by the state at the only time such a challenge would be meaningful. Garrett v. Department of Pub. Safety, 237 Ga. 413, 228 S.E.2d 812 (1976).

Failure to inform the defendant at the time of the defendant's arrest of the defendant's right to an independent chemical analysis did not preclude admission of intoximeter test results when the defendant was so emotionally upset upon being arrested that the arresting officer was unable to advise the defendant of the defendant's implied consent warning but the warning was given prior to administration of the test. Hadden v. State, 180 Ga. App. 496, 349 S.E.2d 770 (1986).

- Defendant was not denied the right to obtain an independent breath/blood test when the officer merely informed the defendant that the defendant would have to pay for the test even though the defendant did not have cash or credit at that time. Avant v. State, 251 Ga. App. 165, 554 S.E.2d 194 (2001).

- O.C.G.A. § 40-6-392 requires that an officer inform a criminal defendant at the time of the defendant's arrest of the defendant's right to an independent chemical analysis to determine the amount of alcohol or drugs present in the blood. Thus, when the arresting officer didn't inform the defendant of the defendant's rights regarding the test until after the officer took the defendant to jail, the defendant's refusal to blow into a breath machine was not admissible at trial. Vandiver v. State, 207 Ga. App. 836, 429 S.E.2d 318 (1993).

Officer's failure to carry a warning card was not a good reason for a delay of more than 45 minutes in advising the defendant of defendant's rights. Dawson v. State, 227 Ga. App. 38, 488 S.E.2d 114 (1997).

When an officer did not give the correct warning at the time of arrest, results of a breath test were inadmissible, even though the officer asked the defendant after the test whether the defendant wanted another test of the defendant's own choosing. State v. O'Donnell, 225 Ga. App. 502, 484 S.E.2d 313 (1997), overruled on other grounds by State v. Turnquest, 305 Ga. 758, 827 S.E.2d 865 (2019).

Counsel was ineffective for failing to file a motion to suppress the defendant's blood sample, which had tested positive for methamphetamine, because the defendant was not read the defendant's implied consent rights until nearly an hour after the defendant was arrested for leaving the scene of an accident, instead of at the time of the defendant's arrest as required by O.C.G.A. §§ 40-5-55 and40-6-392(a)(4). Thrasher v. State, 300 Ga. App. 154, 684 S.E.2d 318 (2009).

- Trial court erred by finding that the defendant's request for a blood test was premature because the state had not yet performed the state's own test and thus required remanding of the case to determine whether the defendant's request was ever actually withdrawn so as to admit the results of the state-administered breath test. Duckett v. State, 206 Ga. App. 651, 426 S.E.2d 271 (1992).

- Trial court's determination that the defendant abandoned any earlier demand for a blood test after being afforded a second breath test was supported by the evidence and therefore was not clearly erroneous. Morgan v. State, 212 Ga. App. 394, 442 S.E.2d 257 (1994).

- In the absence of an affirmative showing in the record of fraud or deceit by the police calculated to thwart an honest exercise of the defendant's statutory rights, the mere fact that the defendant was taken to a facility that would not test the defendant's drawn blood does not render the advice given the defendant, regarding the defendant's right to independent testing, invalid. State v. Griffin, 204 Ga. App. 459, 419 S.E.2d 528 (1992).

- When the defendant offered no evidence to rebut the officer's testimony that the officer read the defendant the implied consent warning card, and no objection to the evidence was raised, the court found no merit to the defendant's argument that the state's evidence failed to establish that the defendant was advised of the defendant's right to an independent test as required by O.C.G.A. § 40-6-392. Walker v. State, 204 Ga. App. 559, 420 S.E.2d 17, cert. denied, 204 Ga. App. 922, 420 S.E.2d 17 (1992).

Defendant's motion to suppress the results of a blood test administered pursuant to a search warrant was properly denied because the statute dealing with chemical tests for alcohol or drugs in a defendant's blood did not grant the defendant the right to an independent test when the officer obtained a search warrant for a blood test; the defendant forfeited the defendant's right to independent testing by refusing the arresting officer's request to submit to a state-administered breath test after being advised under the implied consent law; and the defendant was not entitled to take advantage of the independent test incentive as the defendant refused to submit to the chemical testing requested by the arresting officer. Hynes v. State, 341 Ga. App. 500, 801 S.E.2d 306 (2017).

- Trial court properly determined that a police officer's failure to take the defendant to another hospital to have the withdrawn blood sample actually analyzed after discovering that the original hospital would not perform such an analysis was not reasonable in light of the defendant's request for an independent blood test; therefore, the trial court properly granted the defendant's motion to suppress the results of the state's intoximeter test. State v. Button, 206 Ga. App. 673, 426 S.E.2d 194 (1992).

Once the accused requests an independent test, the officer's duty is not simply to assist the individual in getting the individual's blood drawn. Instead, the officer must accommodate the accused until the accused obtains an admissible test or until it is determined that despite reasonable efforts such a test cannot be obtained. Hulsinger v. State, 221 Ga. App. 274, 470 S.E.2d 809 (1996).

- Statutory rights to alternate tests do not attach until state has performed the state's tests. Nor is a request for an alternate test made prior to testing by the state effective to trigger rights under Ga. L. 1974, p. 633, § 1 (see now O.C.G.A. § 40-6-392). Huff v. State, 144 Ga. App. 764, 242 S.E.2d 361 (1978).

Right to an alternate test by a person of the defendant's own choosing does not attach until the state has performed the state's test. Modlin v. State, 176 Ga. App. 83, 335 S.E.2d 312 (1985); Rawl v. State, 192 Ga. App. 57, 383 S.E.2d 903 (1989).

O.C.G.A. § 40-6-392 gives an accused the right to an independent chemical test when there has been a test administered at the request of law enforcement officers, but the accused did not have the right to refuse the police-administered test and demand one of the defendant's own choosing. Lufburrow v. State, 206 Ga. App. 250, 425 S.E.2d 368 (1992).

Defendant's failure to complete a breath test without justification negated the defendant's right to an alternative test. Allen v. State, 229 Ga. App. 435, 494 S.E.2d 229 (1997).

- State satisfied the state's burden of proving that its test results were obtained in accordance with the statutory guidelines when it is without dispute that the defendant was properly advised of the defendant's right to an additional chemical test and the trial court obviously accepted the defendant's position that the defendant had indeed made such a request. Pruitt v. State, 203 Ga. App. 125, 416 S.E.2d 524, cert. denied, 203 Ga. App. 907, 416 S.E.2d 524 (1992).

State's failure to establish that the defendant was apprised of the defendant's right to an independent test of the defendant's own choosing precludes admission of the intoximeter results. State v. Peters, 211 Ga. App. 755, 440 S.E.2d 515 (1994).

- It is the responsibility of the arrestee, not of the officer, to designate the specifics of independent testing and the officer must be apprised by the arrestee of those specifics before the officer has a duty to facilitate the arrestee's election. State v. Willis, 184 Ga. App. 639, 362 S.E.2d 444 (1987).

- Defendant's questions concerning the procedure which would be followed if the defendant was arrested for driving under the influence and the defendant's response after being told the defendant was entitled to an independent test showed that the defendant did make a sufficient request for an independent test. Church v. State, 210 Ga. App. 670, 436 S.E.2d 809 (1993).

Defendant's words, "Could I get a blood test?" could not be reasonably construed as a request for an additional, independent test under O.C.G.A. § 40-6-392(a)(3). Under the circumstances, it appeared that the defendant's request concerned the type of test the state would administer - blood versus breath - not a desire for an additional test. Mathis v. State, 298 Ga. App. 817, 681 S.E.2d 179 (2009).

Trial court did not err in granting the defendant's motion to suppress evidence of a state-administered breath test because the state failed to reasonably accommodate the defendant's request for an independent blood test; when an officer learned that the defendant did not have sufficient cash for a blood test at one of the recommended hospitals the defendant should have been offered the opportunity to use a telephone to make other arrangements, and the officer's unilateral determination that the defendant would be unable to pay for the blood test, without confirming the hospitals' policies regarding payment and without offering to accommodate the defendant in obtaining a method of payment, was insufficient. State v. Davis, 309 Ga. App. 558, 711 S.E.2d 76 (2011).

After the defendant was convicted of driving under the influence-per se, the defendant's motion to suppress the results of a state-designated breath test was properly denied because, after placing the defendant under arrest and reading the defendant the Georgia implied consent notice, the trooper asked the defendant if the defendant was willing to submit to a chemical test of the defendant's breath, but the defendant responded by saying that the defendant would take a urine test; the trooper then explained that the trooper was asking the defendant to submit to a breath test and the defendant agreed to submit to that test; and the defendant never requested an independent test of the defendant's urine, blood, or breath. Farmer v. State, 335 Ga. App. 679, 782 S.E.2d 786 (2016).

- Trial court's "taking judicial notice" of the fact that the defendant would have only been permitted to make a collect call from jail was not an impermissible factor in resolving the question of whether the defendant was given a reasonable opportunity to make arrangements for the independent blood test the defendant wanted. State v. Mallory, 180 Ga. App. 815, 350 S.E.2d 823 (1986).

- Defendant was not given an ample opportunity to take an independent blood test when the officer who took the defendant to a hospital for such a test told the defendant that the defendant did not have enough money to take the test, would not let the defendant talk to a clerk personally to negotiate another method of payment, and would not allow the defendant to contact relatives who lived near the hospital for financial assistance. State v. Buffington, 189 Ga. App. 800, 377 S.E.2d 548 (1989); Brady v. City of Lawrenceville, 206 Ga. App. 395, 425 S.E.2d 404 (1992).

Defendant was improperly denied the defendant's right to have an independent test performed when the defendant refused to go to any of the three hospitals chosen by the arresting officer and was denied access to another facility approximately ten miles from the location of the arrest. Akin v. State, 193 Ga. App. 194, 387 S.E.2d 35, cert. denied, 193 Ga. App. 909, 387 S.E.2d 351 (1989).

Evidence that the arresting officer refused to authorize the defendant's requests for testing at local hospitals, despite the defendant's ability to pay for such testing, authorized the trial court's finding that a reasonable effort was not made to accommodate the defendant's request for an independent blood test. State v. Vandervoort, 215 Ga. App. 72, 449 S.E.2d 617 (1994).

Because the arresting officer failed to make a reasonable effort to accommodate the defendant's request to obtain an independent blood test in accordance with O.C.G.A. § 40-6-392(a)(3), but instead rebuffed every suggestion the defendant made in order to secure independent testing and, despite security risks, accommodations could have been made, the trial court did not err in granting the defendant's motion in limine to suppress the results of the state-administered breath test. State v. Howard, 283 Ga. App. 234, 641 S.E.2d 225 (2007).

- Motion to suppress results of a state administered breath test was properly granted when police officers never gave the defendant the opportunity to ascertain the defendant's family doctor's telephone number or address in order to obtain a requested independent test. State v. White, 188 Ga. App. 658, 373 S.E.2d 840 (1988).

When an arresting officer failed to warn the defendant ahead of time of a hospital's payment policy for independent tests, even though the officer was fully aware that the defendant did not have sufficient funds to obtain a blood test at the hospital but nevertheless took the defendant there without warning the defendant of the policy, so as to enable the defendant to attempt to make arrangements to secure the necessary funds, the officer failed to make a reasonable effort to accommodate the defendant's desire for an independent chemical test and the intoximeter test results should have been excluded. Love v. State, 195 Ga. App. 392, 393 S.E.2d 520 (1990); State v. Brodie, 216 Ga. App. 198, 453 S.E.2d 786 (1995).

When a defendant was transported from one facility to another and made the request for independent tests once the defendant was allowed to make telephone calls, the defendant's request was made within a reasonable time. Because the state failed to present any evidence at the suppression hearing from which the trial court could find the failure to respond to the defendant's timely request was justified, the evidence of the results of the breath test should have been suppressed. Covert v. State, 196 Ga. App. 679, 396 S.E.2d 596 (1990).

Court's failure to suppress the result of an intoximeter test was error when the defendant asked the arresting police officer to take the defendant to the closest hospital which could administer a blood test, and the officer made an apparently innocent mistake in assuming that no hospitals in the area could administer a legally admissible test. The end result was that the defendant was unable to have an independent blood test which, in effect, amounted to an unjustifiable refusal to permit the defendant an opportunity for an independent test by a person of the defendant's own choosing. O'Dell v. State, 200 Ga. App. 655, 409 S.E.2d 54, cert. denied, 200 Ga. App. 896, 409 S.E.2d 54 (1991).

Upon arrest for driving under the influence, the defendant did not waive the right to a second test under O.C.G.A. § 40-6-392 since although the defendant did not have cash to pay for the test, the defendant did have a credit card and automated teller machine card; police had the duty to reasonably accommodate the defendant and should have allowed the defendant to use a telephone or should have taken the defendant where the defendant could use the teller machine card to obtain necessary cash. Butts v. City of Peachtree City, 205 Ga. App. 492, 422 S.E.2d 909 (1992).

Police officer did not make a reasonable effort to accommodate the defendant's request to obtain an independent breath test after admitting to the defendant that the intoximeter machine used to test the defendant was not functioning properly and a functioning machine was available in the same room. State v. Beall, 211 Ga. App. 799, 440 S.E.2d 537 (1994).

Police officer's testimony that the officer did not accommodate the defendant's request for an independent blood test, as was required pursuant to O.C.G.A. § 40-6-392(a)(3), because the officer speculated that the defendant would bond out of jail and go get the defendant's own test did not show that the state either complied with the statute or that the state offered sufficient justification for not accommodating the request; thus, the defendant's convictions for driving under the influence to the extent the defendant was less safe and driving with an unlawful blood alcohol content had to be reversed. Smith v. State, 250 Ga. App. 583, 552 S.E.2d 528 (2001).

Denial of the defendant's motion to suppress for failure to give the defendant a reasonable opportunity to have an additional breath test performed by a person of the defendant's own choosing pursuant to O.C.G.A. § 40-6-392(a)(3) was not error; complying with the defendant's request would have taken a trooper away from an accident with injuries that required the trooper's presence, the location requested by the defendant was over 40 miles away and outside the trooper's territory, and there was no evidence that the defendant had made arrangements for a test by the defendant's personal physician. Smith v. State, 277 Ga. App. 81, 625 S.E.2d 497 (2005).

Officer's failure to drive a defendant to the defendant's physician's office outside of the officer's jurisdiction, 30-45 minutes away, at a time when the office was likely closed and when the officer's jurisdiction was short-handed, was justified. The officer offered to take the defendant to another independent testing facility and to give the defendant a phone book to find another facility. Ritter v. State, 306 Ga. App. 689, 703 S.E.2d 8 (2010).

- After the defendant was arrested for driving under the influence, and there was conflicting testimony on whether the jailer prevented the individual who came to the defendant's assistance from obtaining an independent test for the defendant, sufficient evidence was presented from which the trial court could rightly conclude that a reasonable effort was made to accommodate the defendant's request for an independent test and that the defendant was not prevented by any action on the part of the law enforcement authority from obtaining the test. Gray v. State, 194 Ga. App. 811, 392 S.E.2d 290 (1990).

When the defendant was offered the opportunity to obtain an independent test but the medical facility selected refused to perform the test, and when again offered the opportunity to have an independent test conducted, the defendant did not select another facility, but became argumentative with the police officers, the trial court properly found that the defendant was afforded a reasonable opportunity to make arrangements for an independent test, but that the defendant had not done so. Jenkins v. State, 198 Ga. App. 843, 403 S.E.2d 859 (1991).

When the defendant exercised the defendant's right to an independent test of the defendant's own choosing by demanding, in writing, an additional breath test, which was performed 20 minutes after the first test by the same officer on the same intoximeter, and yielded the same result, the defendant was afforded the opportunity to obtain an independent test of the defendant's blood-alcohol content. Caldwell v. State, 202 Ga. App. 729, 415 S.E.2d 653 (1992).

Because the trial court found that the arresting officer made a reasonable effort to accommodate the defendant's request for an independent blood test pursuant to O.C.G.A. § 40-6-392(a)(3), the court did not err in denying the defendant's motion to suppress the blood test. Whittle v. State, 282 Ga. App. 64, 637 S.E.2d 800 (2006).

- State is not required to make an affirmative showing that the driver waived the driver's right to an independent blood-alcohol test by a person of the driver's own choosing. Hudgins v. State, 176 Ga. App. 719, 337 S.E.2d 378 (1985).

Paragraph (a)(4) of O.C.G.A. § 40-6-392 does not require an affirmative showing of a waiver of right to additional chemical test or an actual request for additional test. Test is valid if the defendant was informed of the defendant's rights to additional testing at the time of the defendant's arrest. State v. Dull, 176 Ga. App. 152, 335 S.E.2d 605 (1985); Pruitt v. State, 203 Ga. App. 125, 416 S.E.2d 524, cert. denied, 203 Ga. App. 907, 416 S.E.2d 524 (1992).

Arresting officer must advise the testee that the testee is entitled to an independent test (for alcoholic consumption) of the testee's own choosing but need not show that the defendant testee either waived the defendant's right to such a test or sought the additional test. Snelling v. State, 176 Ga. App. 192, 335 S.E.2d 475 (1985).

State need not establish that the defendant made an affirmative waiver of the defendant's right to an independent test. Martin v. State, 176 Ga. App. 871, 338 S.E.2d 298 (1985).

Sufficient compliance with the "implied consent" statute is established by evidence showing that the accused was given timely notice of the accused's implied consent rights and thereafter made no request for an independent chemical test. Martin v. State, 176 Ga. App. 871, 338 S.E.2d 298 (1985).

Affirmative showing of waiver or request for an additional test is not required. State v. Carter, 178 Ga. App. 677, 344 S.E.2d 499 (1986).

State is under no duty to show a driver's affirmative waiver of an additional chemical test. State v. Tosar, 180 Ga. App. 885, 350 S.E.2d 811 (1986).

- Appeals court rejected the defendant's argument that the evidence was insufficient to support a conviction for driving under the influence of alcohol per se because only one breath test was testified to by the state and O.C.G.A. § 40-6-392(a)(1)(B) mandated that two breath tests had to be given; moreover, even if the court were to agree with this contention, the defendant waived this argument by failing to make any objection at trial to the admission of the single breath test. Annaswamy v. State, 284 Ga. App. 6, 642 S.E.2d 917 (2007).

- Law does not require the government to pay for two tests. The second is the driver's option, so that the driver may challenge the results of the officer's requested test. The cost of the optional test, to be administered by a qualified person of the driver's own choosing, must be borne by the driver, at least when the driver is able to pay. Thompson v. State, 175 Ga. App. 645, 334 S.E.2d 312 (1985).

- Ga. L. 1974, p. 633, § 1 (see now O.C.G.A. § 40-6-392) gives one accused of driving under the influence of alcoholic beverages the right to have a chemical analysis of the accused's blood and urine by a qualified person of the accused's own choosing. There is coupled with the right granted to the accused, however, a corresponding duty on the part of law enforcement officers not to deny the accused that right by refusing or failing to take the accused to a hospital for the test the accused wants and is reasonably entitled to have. Puett v. State, 147 Ga. App. 300, 248 S.E.2d 560 (1978).

Before duty of police arises to transport the defendant to a location of independent test, and before there is a breach of that duty which may give reason to suppress the evidence of the state-administered test, the defendant must first show that the defendant had made arrangements with a qualified person of the defendant's own choosing, that the test would be made if the defendant came to the hospital, that the defendant so informed the personnel at the jail where defendant was under arrest, and that those holding the defendant either refused or failed to take the defendant to the hospital for that purpose. Lovell v. State, 178 Ga. App. 366, 343 S.E.2d 414 (1986); Melvin v. State, 205 Ga. App. 799, 423 S.E.2d 718 (1992).

- Mere fact that a defendant was unable to obtain a chemical test of the defendant's own choosing fails to disclose any reason to suppress the results of the state's breathalyzer test. Grizzle v. State, 153 Ga. App. 364, 265 S.E.2d 324 (1980); Harper v. State, 164 Ga. App. 230, 296 S.E.2d 782 (1982); Melvin v. State, 205 Ga. App. 799, 423 S.E.2d 718 (1992).

When the defendant is afforded the opportunity for an independent test, the fact that the defendant is unable to obtain the method of the defendant's own choosing does not of itself require suppression of the state's test results. Dozier v. State, 187 Ga. App. 51, 369 S.E.2d 328 (1988); Cadden v. State, 213 Ga. App. 291, 444 S.E.2d 383 (1994).

- When a driver has been advised of the driver's rights to submit to a chemical test as required by paragraph (a)(4) of O.C.G.A. § 40-6-392, the driver's consent to submit to the test is a valid informed choice. Griggs v. State, 167 Ga. App. 581, 307 S.E.2d 75 (1983).

- Driver is not entitled to the presence of a lawyer, as requested, at the time the driver was asked to submit to a chemical test. Cogdill v. Department of Pub. Safety, 135 Ga. App. 339, 217 S.E.2d 502 (1975).

One is not entitled to advice of counsel when confronted with a decision as to whether to submit to a test under the implied consent law. Oyler v. State, 175 Ga. App. 486, 333 S.E.2d 690 (1985).

- Arresting officer adequately complied with the requirements of O.C.G.A. § 40-6-392(a)(4) when the officer gave the warning to the defendant prior to administering the intoximeter test approximately ten minutes after the defendant's arrest. Martin v. State, 211 Ga. App. 561, 440 S.E.2d 24 (1994).

Trial court did not err in denying a motion to suppress evidence of the blood-alcohol results obtained after the defendant's vehicle was stopped as it was determined that the defendant was driving under the influence, and the police officer waited until a proper time to notify the defendant of the right to take a chemical test; the defendant consented to such a test as a driver using a vehicle on the Georgia highways and the delay in administering the implied consent warning was due to the defendant's drunken condition and difficult behavior. Cain v. State, 274 Ga. App. 533, 617 S.E.2d 567 (2005).

When the officer placed the defendant in handcuffs after the field sobriety tests concluded, the implied consent notice was considered timely read to the defendant because the officer promptly read the implied consent notice to the defendant after placing the defendant in the back of the patrol car; and the record failed to show how the defendant would have benefitted from the notice being read earlier as it might have caused confusion for it to have been read before the officer asked for an alco-sensor test as part of the field sobriety evaluation. State v. Domenge-Delhoyo, 338 Ga. App. 439, 790 S.E.2d 139 (2016).

Factors which weigh into an appellate court's decision to conclude that the implied consent notice is timely include: whether the notice was given at the earliest time at or after arrest when it would be meaningful and a defendant could make an intelligent choice; how the defendant would have benefitted by being read the implied consent notice earlier when an officer properly delays the reading of implied consent for a brief period in order to attend to the exigencies of police work; and that the notice was given on the scene of the arrest rather than after transport to another location. State v. Domenge-Delhoyo, 338 Ga. App. 439, 790 S.E.2d 139 (2016).

- Results of the defendant's intoximeter test were admissible because the arresting officer advised the defendant of the defendant's rights under the implied consent law as close in proximity to the instant of arrest as the circumstances warranted since after the officer stopped the defendant and put the defendant in the patrol car, the officer got a call and went after another vehicle, picked up the driver and then took both of the drivers to the police station and read the defendant the implied consent rights while the drivers were in the patrol car. Fore v. State, 180 Ga. App. 196, 348 S.E.2d 579 (1986).

- When the law enforcement officer cannot communicate with the driver because the driver cannot speak English, any failure to obtain an additional test is justifiable and the results of the state-administered tests are admissible. State v. Tosar, 180 Ga. App. 885, 350 S.E.2d 811 (1986).

- State is not required to take and retain blood samples for use by an unconscious defendant in the event the defendant desires an independent test by someone of the defendant's own choosing after regaining consciousness. Bartell v. State, 181 Ga. App. 148, 351 S.E.2d 495 (1986).

- Trial court did not err in ruling that the state was not required to preserve a breath sample for later independent testing by the defendant nor did the court err in denying the appellant's motion for mistrial on that basis. Kuptz v. State, 179 Ga. App. 150, 345 S.E.2d 670 (1986).

- Defendant's failure to recall the circumstances following a collision did not contradict the state's prima facie showing that the defendant was in a communicative condition - not dead, unconscious or otherwise incapable of refusing the test - when informed of the defendant's rights and thereafter refused chemical testing of the defendant's blood. Duncan v. State, 183 Ga. App. 368, 358 S.E.2d 910 (1987).

- From the terms of paragraph (a)(1) of O.C.G.A. § 40-6-392, it is clear that the chemical test of an arrestee's breath is intended to reflect the arrestee's blood-alcohol level at the "alleged time" that the arrestee was driving under the influence, not at some later time, and it is also clear that the test is to be conducted in accordance with methods which have been administratively approved, not in accordance with any other "approved" methods. When there is no evidence that a "20-minute" rule has ever been administratively approved, an arrestee is not entitled to have suppressed from evidence the results of an intoximeter test which was shown to have been conducted within 20 minutes of the "alleged time" and in accordance with all administratively approved methods. State v. Richardson, 186 Ga. App. 888, 368 S.E.2d 825 (1988).

- When, due to inadvertence, a breathalyzer test of a defendant's breath cannot be completed, and a retest is possible without inconveniencing the defendant and without delay, such a retest is not a violation of the defendant's rights and is not a basis for suppression of the results of the test. Montgomery v. State, 174 Ga. App. 95, 329 S.E.2d 166 (1985).

- Fact that a defendant who was given a breathalyzer test and a blood test requested by the defendant did not have the opportunity to take a urine test was not error. Massengale v. State, 174 Ga. App. 480, 330 S.E.2d 417 (1985).

- See McNair v. State, 177 Ga. App. 502, 339 S.E.2d 773 (1986); Magher v. State, 199 Ga. App. 508, 405 S.E.2d 327 (1991).

Trial court erred in suppressing the results of a blood alcohol content breath test when the test was conducted in accordance with methods adopted by the Division of Forensic Sciences of the Georgia Bureau of Investigation; any deviation from the machine's operator's manual went to the weight and not to the admissibility of the results, and the 20 minute waiting period between taking samples was not part of the approved methods of testing. State v. Palmaka, 266 Ga. App. 595, 597 S.E.2d 630 (2004).

Admissibility of test results into evidence in a criminal proceeding is affected by O.C.G.A. § 40-6-392. State v. Johnston, 160 Ga. App. 71, 286 S.E.2d 47 (1981), aff'd, 249 Ga. 413, 291 S.E.2d 543 (1982).

Under O.C.G.A. § 40-6-392, a chemical analysis of a person's breath is admissible in a criminal proceeding for the offense of driving under the influence of alcohol, but only if obtained in accordance with specific statutory guidelines. State v. Johnston, 160 Ga. App. 71, 286 S.E.2d 47 (1981), aff'd, 249 Ga. 413, 291 S.E.2d 543 (1982).

Implied consent warning properly advised the driver of the purposes for which the driver's blood was to be tested, and the test results were thus admissible in a prosecution for driving with the presence of marijuana in the driver's blood. Radcliffe v. State, 234 Ga. App. 576, 507 S.E.2d 759 (1998).

Trial court properly admitted evidence of the defendant's blood tests in a criminal trial as a proper foundation was laid by the state for purposes of admission under O.C.G.A. § 40-6-392(a)(1)(A) after the supervisor of the person who ran the blood test reviewed the research and results of the test and testified regarding the procedure and results thereof. Verlangieri v. State, 273 Ga. App. 585, 615 S.E.2d 633 (2005).

Trial court erred in suppressing the defendant's refusal to submit to a state-administered chemical breath test as the implied consent notice given by a sheriff's deputy was substantially accurate and timely given, and irrespective of whether the refusal resulted from the defendant's confusion about the defendant's right to, and insistence on, a blood test, it nevertheless remained a refusal. State v. Brookbank, 283 Ga. App. 814, 642 S.E.2d 885 (2007).

Trial court erred in granting the defendant's motion to suppress a breath test slip from an intoxilyzer and all testimony about the intoxilyzer because the state was not required to produce the breath test slip to the defendant ten days before trial as a part of discovery since the breath test slip did not constitute a written scientific report within the meaning of O.C.G.A. § 17-16-23; no test or analysis was performed because the sample was insufficient, and the breath test slip did not show any test results but reflected only a measurement of breath volume. State v. Tan, 305 Ga. App. 55, 699 S.E.2d 74 (2010).

Grant of the defendant's motion to suppress was reversed because the trial court erred in concluding that the defendant did not actually consent to the state-administered blood test under the totality of the circumstances as the undisputed evidence in the video recording demonstrated that the defendant's consent was free and voluntary and the 20-minute delay in the officer's implied consent notice resulted from the officer complying with the defendant's request to perform field sobriety tests. State v. Domenge-Delhoyo, 338 Ga. App. 439, 790 S.E.2d 139 (2016).

- Results of immunoassay test performed on the defendant's blood were admissible after the test was done in accordance with procedures approved by the state crime laboratory as specified by paragraph (a)(1) of O.C.G.A. § 40-6-392. Jackson v. State, 198 Ga. App. 261, 401 S.E.2d 289 (1990), cert. denied, 198 Ga. App. 898, 401 S.E.2d 289 (1991).

Blood tests performed on machines acceptable to the Department of Forensic Science yielding results indicating whether an illegal substance was present in the defendant's blood were admissible. Radcliffe v. State, 234 Ga. App. 576, 507 S.E.2d 759 (1998).

Trial court did not err in denying the defendant's motion to exclude evidence of breathalyzer test results as the state introduced certificates of the Intoxilyzer machine used to obtain breath tests and the machine's operator testified the machine was working properly at the time the tests were administered, and thus, the state established the machine was operating at the time the defendant's breathalyzer tests were conducted. Young v. State, 275 Ga. 309, 565 S.E.2d 814 (2002).

Due to the defendant's agreement to chemical testing, and subsequent submission to the testing, admission of the state-administered chemical test was proper. Doyle v. State, 281 Ga. App. 592, 636 S.E.2d 751 (2006), overruled on other grounds by State v. Turnquest, 305 Ga. 758, 827 S.E.2d 865 (2019).

Defendant's argument, that the officer advised the defendant that the defendant was under arrest for driving under the influence and not for a violation of O.C.G.A. § 40-6-391(a)(6) and that the defendant never consented to the testing of the defendant's blood for the presence of drugs, failed; nothing in O.C.G.A. § 40-5-55 or O.C.G.A. § 40-6-392 required the officer to tell the defendant that the defendant was under arrest for a drug offense in order for the implied consent to be valid. Meiklejohn v. State, 281 Ga. App. 712, 637 S.E.2d 117 (2006).

Trial court did not err in denying a defendant's motion to suppress the results of the defendant's horizontal gaze nystagmus (HGN) field sobriety test and of the Intoxilyzer 5000 breath test as the administrating officer testified to the officer's experience and training as well as the testing and scoring method used regarding the HGN test, and the defendant's constitutional challenges to the admissibility of the Intoxilyzer 5000 breath test results had already been decided in prior case law precedent adversely to the defendant. Laseter v. State, 294 Ga. App. 12, 668 S.E.2d 495 (2008).

Evidence was sufficient for the trial court to find beyond a reasonable doubt that the defendant was guilty of driving an automobile with an unlawful alcohol concentration in violation of O.C.G.A. § 40-6-391(a)(5) because to carry the state's burden to show that the Intoxilyzer machine on which the defendant's breath was tested was operated with all the machine's electronic and operating components attached and in good working order, the state produced certificates of inspections conducted on the machine before and after the test, and the testimony of the operator that the machine was operating properly when the test was conducted; the machine produced test results showing that the defendant had an alcohol concentration of 0.179 grams. Yeary v. State, 302 Ga. App. 535, 690 S.E.2d 901 (2010).

Court of appeals did not err in reversing an order granting the defendant's motion to suppress evidence of the state's breath test results because the procedures followed by the state comported with the fundamental fairness required by due process; the police officer delivered to the defendant the required implied consent notice in an accurate and timely manner, thereby informing the defendant of the right to an independent test under O.C.G.A. § 40-6-392(a)(3). Thus, the state was under no constitutional duty to immediately inform the defendant of the results of the state-administered breath test. Padidham v. State, 291 Ga. 99, 728 S.E.2d 175 (2012).

- While it is not improper, in light of O.C.G.A. § 40-6-392(d), to instruct a jury that evidence of a defendant's refusal to submit to chemical testing of the defendant's bodily substances is admissible against the defendant, or that the jury could infer the presence of alcohol from the defendant's refusal, Georgia law does not permit a jury to infer from a defendant's refusal of chemical testing that the test would have showed that alcohol impaired the defendant's driving; impaired driving ability depends solely upon an individual's response to alcohol, which varies from person to person, such that the presence of alcohol in a defendant's body, by itself, does not support an inference that the defendant was an impaired driver for purposes of O.C.G.A. § 40-6-391(a)(1). Baird v. State, 260 Ga. App. 661, 580 S.E.2d 650 (2003).

Evidence of the defendant's refusal to submit to voluntary field sobriety tests was admissible, and was not testimonial in nature and thus subject to the Fifth Amendment protection against self-incrimination as a refusal to submit to the tests was not testimonial in nature, and the mere fact that the defendant refused to submit to a blood test was not subject to the privilege against self-incrimination since no impermissible coercion was involved, regardless of the form of refusal. Ferega v. State, 286 Ga. App. 808, 650 S.E.2d 286 (2007), cert. denied, 129 S. Ct. 195, 172 L. Ed. 2d 140 (2008).

Defendant's DUI conviction was upheld on appeal as the evidence of guilt was overwhelming, specifically: smelling strongly of alcohol, having trouble walking and speaking, fumbling with a wallet, a half-empty can of beer in the defendant's truck, hiding the truck's keys and a license in the bathroom, the officer having just seen the defendant driving, despite the defendant's claim to the contrary, and the multiple similar transactions. Caraway v. State, 286 Ga. App. 592, 649 S.E.2d 758 (2007), cert. denied, No. S07C1736, 2007 Ga. LEXIS 686 (Ga. 2007).

Because the defendant's apparent violation of O.C.G.A. § 40-6-16(a) gave the investigating officer a reasonable and articulable suspicion to stop the defendant and inquire further, the trial court erred in granting the defendant's motion to suppress a refusal to take a breath test in connection with DUI charges; moreover, the trial court erroneously concluded that the defendant could have had an innocent explanation for a last-minute swerve to avoid hitting the officer's patrol car as the issue went to the question of guilt or innocence and was not the dispositive question on a motion to suppress. State v. Rheinlander, 286 Ga. App. 625, 649 S.E.2d 828 (2007).

As a defendant, convicted of driving under the influence, had been read the implied consent rights as soon after the arrest as was warranted under the circumstances, as required by O.C.G.A. § 40-6-392(a)(4), defense counsel was not deficient for not subpoenaing an officer to establish the contrary and thereby prevent admission of evidence that the defendant refused to submit to a breath test. Lynch v. State, 293 Ga. App. 858, 668 S.E.2d 264 (2008).

Trial court properly denied the defendant's motion in limine to exclude evidence that the defendant refused chemical testing based on the testimony of a deputy that while in the defendant's hospital room, a ticket was written for drunk driving and the defendant was advised of the custodial arrest; thus, there was no error in the trial court's determination that a reasonable person in the defendant's position would not think that they were free to leave at the time the deputy read the implied consent warnings. Plemmons v. State, 326 Ga. App. 765, 755 S.E.2d 205 (2014).

In the defendant's DUI trial, O.C.G.A. § 40-6-391(a)(1), because a breath test was permitted as a search incident to the defendant's DUI arrest, the defendant's refusal to take the breath test was not the exercise of the constitutional right against unreasonable searches and seizures, and evidence of the defendant's refusal was properly admitted under O.C.G.A. § 40-5-67.1(b). Cherry v. State, 345 Ga. App. 409, 813 S.E.2d 408 (2018), cert. denied, No. S18C1104, 2018 Ga. LEXIS 720 (Ga. 2018).

- Trial court was not required to suppress evidence of the defendant's breath test results, although it was clear that the defendant refused to take a breath test when asked at the scene as the defendant rescinded that refusal by agreeing to take the test at the police station. Stapleton v. State, 279 Ga. App. 296, 630 S.E.2d 769 (2006).

- Trial court's grant of the appellee's motion in limine to suppress the results of a breath test was reversed because refusing to allow the appellee to make a phone call did not constitute coercion as there was no evidence to support the trial court's finding that the appellee's consent to the breath test was obtained after the DUI officer told the appellee that the call to the appellee's daughter could not be made unless the appellee took a breath test, so that finding was clearly erroneous. State v. Council, 348 Ga. App. 497, 823 S.E.2d 817 (2019).

- Trial court did not err in excluding the defendant's testimony regarding an independent blood test made more than eight hours after the arrest. Allen v. State, 229 Ga. App. 435, 494 S.E.2d 229 (1997).

- Officer's preference that officer read the implied consent warning in the presence of a witness was not sufficient reason to excuse the officer's failure to give the warning at the time of arrest. State v. Lamb, 217 Ga. App. 290, 456 S.E.2d 769 (1995).

- Absent an arrest, a person involved in an accident resulting in serious injuries or fatalities must be informed of the person's implied consent rights within a reasonable amount of time after the accident, as determined by the circumstances, and, when possible, before the administration of any state tests. Seith v. State, 225 Ga. App. 684, 484 S.E.2d 690 (1997).

Trial court erred in granting the defendant's motion to suppress results from a blood test performed prior to any arrest as: (1) the evidence showed that the defendant was involved in a car wreck resulting in serious injury before blood was drawn; and (2) a sheriff's deputy had probable cause to suspect that the defendant had been driving under the influence of alcohol; moreover, contrary to the defendant's assertion, the fact that a loss of consciousness was temporary did not cause the blood test to fall outside the ambit of O.C.G.A. § 40-5-55(c). State v. Umbach, 284 Ga. App. 240, 643 S.E.2d 758 (2007).

- State does not have to show the defendant's actual consent, but only that, after being advised of the defendant's rights pursuant to O.C.G.A. § 40-6-392, the defendant did not refuse to submit to the state-administered test. Wadsworth v. State, 209 Ga. App. 333, 433 S.E.2d 419 (1993).

Implied consent warnings were timely when the warnings were given by the officer after the officer attended to matters at the scene that were necessary, including attending to the defendant's injuries and making certain the scene was cleared. Morrissette v. State, 229 Ga. App. 420, 494 S.E.2d 8 (1997).

An officer issued a "be on the lookout" (BOLO) after the defendant, who had struck a car and smelled of alcohol, sped off; the officer did not mention that the defendant appeared intoxicated. A second officer who heard the BOLO and detained the defendant at a restaurant did not have probable cause to arrest the defendant; therefore, the fact that the defendant was not read the defendant's implied consent rights until other officers arrived and arrested the defendant did not make the implied consent advisement untimely under O.C.G.A. § 40-6-392(a)(4). Lynch v. State, 293 Ga. App. 858, 668 S.E.2d 264 (2008).

Trial court did not err by refusing to suppress the defendant's blood-test results based on not being under arrest prior to being read Georgia's implied consent notice because, although the defendant's recollection differed from that of the law-enforcement officer, and although defense counsel cross-examined the officer extensively as to alleged inconsistencies in the chronology of events, the officer testified that the officer issued citations to the defendant before reading Georgia's implied consent notice. Chernowski v. State, 330 Ga. App. 702, 769 S.E.2d 126 (2015).

- Trial courts may take judicial notice that Intoximeter 3000 machine test results are based on accepted scientific theory or rest upon the laws of nature; and, when the statutory requirements for admissibility are met, the results may be admitted into evidence without expert testimony regarding the scientific theory behind the operation of the test. Lattarulo v. State, 261 Ga. 124, 401 S.E.2d 516 (1991), cert. denied, 502 U.S. 823, 112 S. Ct. 86, 116 L. Ed. 2d 59 (1991); McClendon v. State, 201 Ga. App. 262, 410 S.E.2d 760 (1991).

Trial court did not err in admitting the results of a breath test over the defendant's objections that the "methods" used to test the defendant were not contained in the Georgia Bureau of Investigation's published administrative regulations. Rowell v. State, 229 Ga. App. 397, 494 S.E.2d 5 (1997).

Failure to continuously watch the defendant for 20 consecutive minutes prior to the breath test did not require exclusion of the test results when the evidence shows that the 20-minute rule was substantially complied with and, although an accused can always introduce evidence of the possibility of circumstances that might cause error in the test results, such evidence relates to the weight rather than the admissibility of the test results. Berkow v. State, 243 Ga. App. 698, 534 S.E.2d 433 (2000).

Trial court properly refused to suppress evidence of a defendant's chemical breath test; testimony from an officer and proof that a current implied consent card contained the same language as the card used during the defendant's arrest allowed the trial court to conclude that the officer had advised the defendant of the defendant's implied consent rights, and as there was evidence that the breath test machine was working properly at the time of the defendant's breath test, any argument regarding the machine's subsequent removal or repair went to the weight of the results, not their admissibility. Jones v. State, 285 Ga. App. 352, 646 S.E.2d 323 (2007), cert. denied, No. S07C1407, 2007 Ga. LEXIS 758 (Ga. 2007).

- Breath test results were admissible at a trial for a violation of O.C.G.A. § 40-6-391(a)(1) and (a)(5) as the police officer's notification to the defendant of the implied consent rights under O.C.G.A. § 40-6-392(a)(4) was timely in the circumstances; although the defendant was placed in the police car and not given the notification for 18 minutes, the notice was timely because the officer was attending to the passenger and ensuring that the passenger was unharmed and had a safe way to get home and the officer was transporting possession of the vehicle for purposes of impounding the vehicle. Naik v. State, 277 Ga. App. 418, 626 S.E.2d 608 (2006).

- Fact that a defendant did not have sufficient breath to complete the second of two breath tests did not require suppression of the first test which indicated a blood alcohol level of .146. Thrasher v. State, 292 Ga. App. 566, 666 S.E.2d 28 (2008).

- Motion filed by a defendant to exclude the results of a breath test under the Georgia implied consent law in the defendant's prosecution for driving under the influence under O.C.G.A. § 40-6-391 was properly denied because the defendant was not entitled to the advice of counsel before deciding whether to submit to the test; the right to counsel under U.S. Const., amend. 6 and Ga. Const. 1983, Art. I, Sec. I, Para. XIV did not come into play until the proceedings had reached a critical stage, and the breath test was not such a stage because it did not signal the beginning of a formal adversary hearing and because a lawyer could add little to the warnings required from the officer administering the test by O.C.G.A. § 40-6-392(a)(4). Rackoff v. State, 281 Ga. 306, 637 S.E.2d 706 (2006).

- Despite an order suppressing the defendant's breath test results, the results remained admissible for impeachment purposes once the defendant testified that the limited alcohol consumed did not affect or impair an ability to drive. Moreover, absent bad faith or an order requiring production, the state did not fail to fully disclose all information regarding the defendant's breath test. Rosandich v. State, 289 Ga. App. 170, 657 S.E.2d 255 (2008), cert. denied, No. S08C0861, 2008 Ga. LEXIS 380 (Ga. 2008).

- Trial court did not err in denying the defendant's Batson challenge regarding the state's peremptory strike of an African-American juror who was a dance instructor as the prosecutor explained that the prosecutor struck the juror because people in artistic professions had "a different slant," discriminatory intent was not inherent in this race-neutral explanation, and the juror was not similarly situated to other jurors who were not stricken. White v. State, 258 Ga. App. 546, 574 S.E.2d 629 (2002).

Admissibility of an alco-sensor test result is not governed by O.C.G.A. § 40-6-392. Simms v. State, 223 Ga. App. 330, 477 S.E.2d 628 (1996).

Even though the admissibility of alcosensor results is not governed by O.C.G.A. § 40-6-392 when the results are not used as evidence of the amount of alcohol in a person's blood, when the testimony is that the alcosensor showed evidence of alcohol on the defendant's breath, the officer must testify that the officer used a device of approved design. Knapp v. State, 229 Ga. App. 175, 493 S.E.2d 583 (1997).

Argument that the results of an alco-sensor test were inadmissible because the defendant submitted to the test at the request of the defendant's wife, and not the officer's request, were meritless because O.C.G.A. §§ 40-5-55 and40-6-392(a)(4) did not apply to the administration of the alco-sensor test. Hernandez v. State, 297 Ga. App. 177, 676 S.E.2d 795 (2009).

Trial court did not err in admitting the results of the defendant's portable alco-sensor test because even though the defendant was in custody for purposes of Miranda, the portable test was administered in response to a demand from the defendant, not the officer; thus, the situation was more akin to a spontaneous outburst from an unwarned suspect or a test conducted pursuant to the Georgia implied consent statute, O.C.G.A. § 40-6-392. Hale v. State, 310 Ga. App. 363, 714 S.E.2d 19 (2011), overruled on other grounds by State v. Turnquest, 305 Ga. 758, 827 S.E.2d 865 (2019).

- When the defendant asserted as error the denial of the defendant's motion to exclude the results of two intoximeter tests performed after the defendant was arrested, arguing that the results of the tests should have been suppressed because the arresting officer discouraged the defendant from taking a blood test after the defendant had elected to do so and forced the defendant to accept the state's choice as to the type of independent test administered, there was no error, since the trial court concluded that by the defendant's own testimony, the defendant stated that the defendant decided that the defendant's best alternative was to take the breath test. Hattaway v. State, 191 Ga. App. 812, 383 S.E.2d 140, cert. denied, 191 Ga. App. 922, 383 S.E.2d 140 (1989).

Computer generated analysis of breath, made admissible pursuant to O.C.G.A. § 40-6-392(a) upon showing a proper foundation, was properly admitted into evidence. The analysis, referred to by that section, was "created" by the machine and not by the trooper who was trained in the use of the machine and the administration of the test. Walters v. State, 195 Ga. App. 434, 394 S.E.2d 105 (1990).

It was not error to admit into evidence an intoximeter printout and allow the jury to see the printout, over the defendant's objection that the printout was cumulative of the officer's testimony. Walters v. State, 195 Ga. App. 434, 394 S.E.2d 105 (1990).

When the machine used to test the defendant's breath was an approved type, the officer who administered the test was trained and certified to operate the machine, the machine was operating properly when the defendant's breath was tested, and the defendant was informed of the defendant's implied consent rights before being tested, the evidence established that the defendant's breath was tested in accordance with the specific guidelines of O.C.G.A. § 40-6-392. Eppinger v. State, 198 Ga. App. 889, 403 S.E.2d 829, cert. denied, 198 Ga. App. 897, 403 S.E.2d 829 (1991).

O.C.G.A. § 40-6-392 was satisfied when the officer who administered the tests was authorized by the State of Georgia to perform chemical analyses utilizing the Intoximeter Breath Analyzer 3000 machine and the officer's certification permit was admitted into evidence without objection. Stinson v. State, 203 Ga. App. 225, 416 S.E.2d 765, cert. denied, 203 Ga. App. 908, 416 S.E.2d 765 (1992).

Probate court did not err by admitting an intoximeter test result despite a delay in advising the defendant of the defendant's implied consent rights when the police officer's intervening emergency call required that another certified operator be located to administer the test, and the conservation ranger's truck was not suited for carrying uncooperative passengers safely, thus requiring the officer to concentrate the officer's efforts on placing defendant in custody and safely and effectively transporting the defendant, rather than on advising the defendant of the defendant's rights. Given these exigencies and the fact that evidence showed that the defendant had earlier been belligerent, angry, and uncooperative, advising the defendant of the defendant's implied consent rights would have been of no conceivable benefit. Smith v. State, 204 Ga. App. 576, 420 S.E.2d 29, cert. denied, 204 Ga. App. 922, 420 S.E.2d 29 (1992).

Officers' testimony that blood alcohol breath test machines were functioning properly, had been inspected, that no pieces or components were missing, that the officers performed all required tests, and that the officers prepared the instruments in accordance with the officers' training showed substantial compliance with the required procedures, and admission of the test results was proper; the defendants' arguments that the breath test results should have been inadmissible because the machines registered increasing blood alcohol concentration readings as a person continued to blow into the machines went to the weight of the evidence, which was for the trial court to determine. Whittaker v. State, 279 Ga. App. 148, 630 S.E.2d 560 (2006).

Trial court did not err in denying suppression of the results of the defendant's Intoxilyzer 5000 and other field sobriety tests administered upon a defendant's arrest for driving with an unlawful alcohol concentration and driving under the influence of alcohol in violation of O.C.G.A. § 40-6-391 as: (1) the arguments the defendant raised about the officer's ability to manipulate the Intoxilyzer 5000 test went to the weight, and not admissibility of the evidence; (2) the officer was sufficiently trained to administer the tests; (3) the state showed substantial compliance with the required procedures; and (4) no due process violation resulted from the evidence being admitted. Stewart v. State, 280 Ga. App. 366, 634 S.E.2d 141 (2006).

- When the evidence showed that the defendant was properly informed of the defendant's rights under the implied consent law and went on to take the test, the defendant obviously did not refuse to submit to the test, and the state had no further burden of showing the defendant's consent thereafter. Wadsworth v. State, 209 Ga. App. 333, 433 S.E.2d 419 (1993).

- To prove that a blood alcohol test is valid, there is no requirement that a "certificate" of any kind must be introduced at trial; the state sufficiently complied with the state's burden of proof by competent circumstantial evidence that the test was performed according to approved methods, on a machine in good working order, and by an individual possessing a valid permit. Bazemore v. State, 225 Ga. App. 741, 484 S.E.2d 673 (1997).

Oral testimony of an intoximeter machine operator was properly admitted as original evidence when there was no contention either that the witness had not been qualified to operate the machine or that the operator had failed to perform the test in accordance with methods approved by the Division of Forensic Services of the Georgia Bureau of Investigation. Valdez v. State, 192 Ga. App. 10, 383 S.E.2d 611 (1989).

- When the only evidence offered by the state as to the qualifications of the person who withdrew the defendant's blood was inadmissible hearsay having no probative value, the state failed to present any competent evidence showing that the mandatory requirements of O.C.G.A. § 40-6-392(a)(2) had been met; breach of the requirement rendered evidence of the blood test offered by the state inadmissible to establish a presumption that the alleged drunken driver was driving under the influence. Harden v. State, 210 Ga. App. 673, 436 S.E.2d 756 (1993).

Testimony of a state trooper that a nurse withdrew the blood was not competent evidence to prove compliance with the "qualified person" requirement. Carr v. State, 222 Ga. App. 776, 476 S.E.2d 75 (1996).

Testimony of the arresting officer that the officer knew the hospital employee who drew the defendant's blood and that the employee had drawn blood for the officer several times was not sufficient to show that the employee was qualified within the meaning of O.C.G.A. § 40-6-392. Brahm v. State, 230 Ga. App. 407, 497 S.E.2d 240 (1998).

Admission of a copy of a document certifying that the inspector of the Intoxilyzer 5000 was authorized to perform inspections was not reversible error. Kollman v. State, 231 Ga. App. 630, 498 S.E.2d 745 (1998).

Proof of the qualifications of the person who drew the defendant's blood was properly established through hospital business records and the testimony of a supervisor. Dean v. State, 232 Ga. App. 390, 501 S.E.2d 895 (1998).

Only acceptable methods of proving the qualification of the person who drew a defendant's blood are the certificate provided for in O.C.G.A. § 40-6-392(e), introduced by means of the business records exception to the hearsay rule, and the testimony of the person who drew the blood. Peek v. State, 272 Ga. 169, 527 S.E.2d 552 (2000).

State properly laid a foundation for the admission of Intoxilyzer 5000 test results by the administering officer testifying that the officer was trained to operate the Intoxilyzer 5000 and that the officer had a permit from the Division of Forensic Sciences (DFS) to operate it, and by the permit, which was entered into evidence, showing that the officer was certified by the DFS to perform chemical analyses of breath specimens pursuant to the Uniform Act Regulating Traffic on Highways and the authorization was applicable to analyses utilizing an Intoxilyzer Model 5000. Garland v. State, 256 Ga. App. 313, 568 S.E.2d 540 (2002).

- It is sufficient for a breathalyzer operator to testify to the facts upon which a trial court can base a conclusion that a chemical test complied with O.C.G.A. § 40-6-392(a)(1)(A). It is not necessary that the operator additionally testifies to the operator's opinion that the test was performed according to methods approved by the Division of Forensic Sciences of the Georgia Bureau of Investigation. State v. Naik, 259 Ga. App. 603, 577 S.E.2d 812 (2003).

- In a prosecution for driving under the influence, testimony of the forensic toxicologist who tested the defendant's blood was properly admitted as expert testimony as the witness had a permit from the Georgia Bureau of Investigation to perform chemical analyses of blood specimens received from the police, and the defendant subsequently had the opportunity to cross-examine the witness about the witness's credentials and testimony. Fowler v. State, 294 Ga. App. 864, 670 S.E.2d 448 (2008), cert. denied, No. S09C0529, 2009 Ga. LEXIS 204 (Ga. 2009).

- When the state periodically tested the intoximeter machine and a log was kept in the sheriff's office, such tests being required to be made periodically, the intoximeter results were properly admitted. Walters v. State, 195 Ga. App. 434, 394 S.E.2d 105 (1990).

Although a breath machine was taken out of service after the defendant's test, the state submitted circumstantial evidence in accordance with O.C.G.A. § 40-6-392(f) that the machine was in good working order during the test; therefore, the trial court erred in granting the defendant's motion to suppress. State v. Rackoff, 264 Ga. App. 506, 591 S.E.2d 379 (2003).

- Log sheet with handwritten intoxilyzer results was not excluded because the state had provided everything the state had with regard to the intoxilyzer results and there was nothing left in the state's possession to complete that evidence; to the extent that the state failed to provide information in the detail provided on an intoxilyzer printout, those omissions went to the weight and not the admissibility of the intoxilyzer results. Cross-examination of the officer who administered the test would allow the defendant's counsel the opportunity to test the nature of the state's evidence, and the trial court indicated that the court would revisit the motion in limine admitting the log sheet should the state not offer the testimony of that officer. Jones v. State, 345 Ga. App. 14, 812 S.E.2d 337 (2018).

Attachment of test cards to inspection certificates was not required for admissibility of breath test results. Yount v. State, 249 Ga. App. 563, 548 S.E.2d 674 (2001).

- Certificates showing that a breath test machine was properly functioning both prior to and following the defendant's test were improperly admitted without proof of sufficient indicia of reliability. Daniel v. State, 227 Ga. App. 92, 488 S.E.2d 129 (1997).

- O.C.G.A. § 40-6-392(f) does not require that copies of certificates of inspection must be certified to be admissible. Andries v. State, 236 Ga. App. 842, 512 S.E.2d 685 (1999).

Certificate of inspection for a breath-testing instrument was admissible even though the certificate was not prepared until eight months after the inspection. Williams v. State, 224 Ga. App. 368, 481 S.E.2d 535 (1997).

As a certificate of inspection of a breath test machine, pursuant to O.C.G.A. § 40-6-392(f), was deemed simply a record made in the regular course of business, the certificate was not "testimonial" hearsay under Crawford v. Washington, 541 U.S. 36 (2004), and the defendant's confrontation rights under the Sixth Amendment were not violated when the certificate was offered into evidence in a driving under the influence trial. Rackoff v. State, 275 Ga. App. 737, 621 S.E.2d 841 (2005).

- Testing certificates for a breath-testing machine were properly admitted into evidence in a defendant's trial for driving under the influence (less safe and per se) under former O.C.G.A. § 24-3-14 (see now O.C.G.A. § 24-8-803) and O.C.G.A. § 40-6-392(f). The documents did not come within the Melendez-Diaz v. Massachusetts, 557 U.S. 305, 129 S. Ct. 2527, 174 L. Ed. 2d 314 (2009) because the documents are not generated for the prosecution of a particular defendant. Ritter v. State, 306 Ga. App. 689, 703 S.E.2d 8 (2010).

- Admission of photocopies of certificates of inspection was not an abuse of discretion when the originals were accounted for. Chastain v. State, 231 Ga. App. 225, 498 S.E.2d 792 (1998).

Uncertified photocopies of a certificate of inspection for an Intoxilyzer 5000 were admissible after a police officer testified at trial that the officer personally made the photocopies of the original certificates. Wright v. State, 238 Ga. App. 442, 519 S.E.2d 461 (1999).

- Inspector's delay in signing a certificate of inspection of a breath test machine went to the certificate's weight rather than the certificate's admissibility. Tam v. State, 225 Ga. App. 101, 483 S.E.2d 142 (1997).

- When the state laid no foundation for inspection certificates other than testimony describing the certificates and showing that the certificates were "maintained in the log book" for the breath machine, the test results were erroneously admitted. Hamilton v. State, 228 Ga. App. 285, 491 S.E.2d 485 (1997).

- Certificate of inspection is not the sole method of meeting the foundational requirements for admitting into evidence the results of a breath alcohol test. Banks v. State, 235 Ga. App. 701, 509 S.E.2d 63 (1998).

- Because the state did not offer a contrary proffer as to how the deputy might have answered the objected-to question, regarding whether the machine used for the breath test was authorized by the Division of Forensic Sciences, the trial court did not err in suppressing the results based on the state's failure to lay a foundation for the evidence. State v. Warren, 338 Ga. App. 849, 792 S.E.2d 116 (2016).

- Results of the defendant's breath test were erroneously admitted after the state failed to establish that the state's Intoximeter 3000 machine had all the machine's electronic and operating components attached and in working order. Raulerson v. State, 223 Ga. App. 556, 479 S.E.2d 386 (1996).

Testimony of the individual who conducted breath tests sufficiently proved by circumstantial evidence that the tests were performed on a machine operated with all the machine's electronic and operating components prescribed by the machine's manufacturer properly attached and in good working order. Gidey v. State, 228 Ga. App. 250, 491 S.E.2d 406 (1997); Diaz v. State, 245 Ga. App. 380, 537 S.E.2d 784 (2000).

Certification and inspection of a machine need not occur on the same day as the testing. Rowell v. State, 229 Ga. App. 397, 494 S.E.2d 5 (1997).

Defendant charged with driving with an unlawful alcohol concentration may always introduce evidence of the possibility of error or circumstances that might have caused the machine to malfunction; such evidence would relate to the weight rather than the admissibility of breathalyzer results. Banks v. State, 235 Ga. App. 701, 509 S.E.2d 63 (1998).

Defendant is entitled to attack the results of a blood alcohol test by attempting to show the machine was not in good working order and thus not operating properly when the defendant was tested. Banks v. State, 235 Ga. App. 701, 509 S.E.2d 63 (1998).

Evidence of a refusal to submit to a blood-alcohol test is admissible because the refusal is relevant to the question of guilt or innocence. Wessels v. State, 169 Ga. App. 246, 312 S.E.2d 361 (1983) (decided prior to 1983 amendment adding subsection (c)).

Defendant's refusal to take a blood alcohol test is relevant and admissible. Rawl v. State, 192 Ga. App. 57, 383 S.E.2d 903 (1989).

Defendant who was acquitted of driving under the influence of drugs, and as to whom the court directed a verdict of "not guilty" of driving under the influence of alcohol, could nonetheless be found guilty of driving under the combined influence of drugs and alcohol, arising from the same incident, since the arresting officer testified that the defendant refused to submit to a chemical test of the defendant's blood, the defendant had glassy and bloodshot eyes, and that the defendant tested positive for alcohol on the alco-sensor and for drugs using two field sobriety eye tests. Mendoza v. State, 196 Ga. App. 627, 396 S.E.2d 576 (1990).

Person is required to submit to a test to determine if the person is under the influence of alcohol or other drugs; however, a driver has the right to refuse to take a state administered test, subject to the mandate that exercise of the right of refusal shall be admissible in the driver's criminal trial. State v. Leviner, 213 Ga. App. 99, 443 S.E.2d 688 (1994).

- Defendant's failure to provide an adequate breath sample was properly considered a refusal, and the instructions given by the trial court regarding the evidentiary ramifications of such a refusal were both proper and warranted since the defendant did not blow hard enough in the machine to register a result on either of two tries and the officer who arrested the defendant testified that the officer believed that the defendant was too intoxicated to give an adequate sample. Komala v. State, 237 Ga. App. 236, 515 S.E.2d 185 (1999).

- When the arresting officer testified that the defendant pretended to, but did not, blow into a breath-alcohol testing machine, which had been tested and was certified as working properly, and the defendant testified as to why the defendant was unable to provide an adequate breath sample, the trial court was authorized to believe the officer's testimony that the defendant was unwilling, not unable, to give a sample sufficient to determine the defendant's blood alcohol concentration. Walker v. State, 262 Ga. App. 872, 586 S.E.2d 757 (2003).

- Officer's statement to the defendant: "After submitting to the required testing, you are entitled to additional chemical tests at your own expense" did not properly advise the defendant of the defendant's rights, and evidence of the defendant's refusal to submit to a state administered test was inadmissible at trial. Moore v. State, 217 Ga. App. 536, 458 S.E.2d 479 (1995).

- Prosecutor's argument regarding the defendant's failure to take an additional blood alcohol level test did not create an impermissible inference because had the defendant refused to submit to any chemical test, that refusal would have been admissible at trial under subsection (d) of O.C.G.A. § 40-6-392 as positive evidence creating an inference that such a test, if performed, would have shown the presence of alcohol in the defendant's blood. Dupont v. State, 204 Ga. App. 262, 418 S.E.2d 803 (1992).

Two sequential breath test results were properly allowed into evidence. Horne v. State, 237 Ga. App. 844, 517 S.E.2d 74 (1999).

Because an intervening failed breath test, due to the defendant's inability to provide an adequate sample, did not render otherwise valid breath alcohol test results inadmissible, and given that the fact of an intervening failed breath test went to the weight, not the admissibility, of the test results, suppression of the results was properly denied; moreover, the appeals court declined to hold that the word "sequential," also meant without any gaps in the procedure due to the test taker's inability to give an adequate breath sample. Davis v. State, 286 Ga. App. 443, 649 S.E.2d 568 (2007).

- Trial court erred in ruling that a printout in the defendant's case be redacted to reflect or show the first, lower breath test result only on the ground that Georgia law only allowed the lower of two sequential breath test samples to be used to prosecute the defendant's DUI case as O.C.G.A. § 40-6-392(a)(1)(B) clearly contemplated the admission of both sequential test results even though the statute specified that the lower of the two numbers was to be the determinative number for certain purposes. State v. Kruzel, 261 Ga. App. 90, 581 S.E.2d 711 (2003).

State was without authority to conduct a third breath test on the defendant and the trial court should have granted the defendant's motion to exclude the results of a third test. Davis v. State, 237 Ga. App. 817, 517 S.E.2d 87 (1999).

- It was not error to deny the defendant's motion to suppress testimony that the defendant refused to take a breath test although there was no affirmative showing by the state that implied consent warnings were given. Wyatt v. State, 179 Ga. App. 327, 346 S.E.2d 387 (1986).

When the defendant failed to show a medical or physical explanation why the defendant was unable to take and complete a breath test, it was not error to admit evidence of such nonverbal refusal. Allen v. State, 229 Ga. App. 435, 494 S.E.2d 229 (1997).

- Admissibility of breathalyzer test results is controlled solely by O.C.G.A. § 40-6-392 so that, as long as a test has been conducted in compliance with the statute, a defendant is precluded from attacking the admissibility of the test based on a challenge to the scientific reliability of the result. Brannan v. State, 261 Ga. 128, 401 S.E.2d 269 (1991).

- In the absence of the advice of rights under O.C.G.A. § 40-6-392, the intoximeter test results administered by the arresting officer are inadmissible. Nelson v. State, 135 Ga. App. 212, 217 S.E.2d 450 (1975); Holcomb v. State, 217 Ga. App. 482, 458 S.E.2d 159 (1995).

Results of a breath test for alcohol content are rendered inadmissible by the failure to advise the defendant, both at the time of the defendant's arrest and at any time subsequent thereto, of defendant's right to the three types of chemical tests set forth in the Uniform Rules of the Road, viz., blood, urine, and breath. Hulsey v. State, 138 Ga. App. 221, 225 S.E.2d 752 (1976).

Substantial compliance with the provision as to additional blood-alcohol-level tests does not compensate for the total failure to advise the defendant at any time of the defendant's right to a urine analysis. Hulsey v. State, 138 Ga. App. 221, 225 S.E.2d 752 (1976).

Language of Ga. L. 1974, p. 633, § 1 (see now O.C.G.A. § 40-6-392) makes it clear that a person must be advised of the person's right to have an additional test administered by a qualified person of the person's own choice in addition to the one administered by the arresting officer. The failure to so inform invalidates the result of any test and also justifies the refusal to submit to a test. Garrett v. Department of Pub. Safety, 237 Ga. 413, 228 S.E.2d 812 (1976).

It is reversible error to admit evidence regarding the result of a breath test when the defendant was informed of the defendant's right to have either a blood or breath test, but was not advised of the defendant's additional right under Ga. L. 1974, p. 633, § 1 (see now O.C.G.A. § 40-6-392). Torley v. State, 141 Ga. App. 366, 233 S.E.2d 476 (1977).

Results of an intoximeter (breath) test which is taken in violation of the protections afforded by Ga. L. 1974, p. 633, § 1 (see O.C.G.A. § 40-6-392) may not be used in evidence against the defendant. State v. Johnston, 160 Ga. App. 71, 286 S.E.2d 47 (1981), aff'd, 249 Ga. 413, 291 S.E.2d 543 (1982).

When a person is not advised, at the time of arrest, or at a time as close in proximity to the instant of arrest as the circumstances of the individual case might warrant, of the person's right to an independent chemical analysis to determine blood-alcohol or drug contents, the results of a state-administered test will not be admissible at trial to show that the accused was driving under the influence of alcohol or drugs. Perano v. State, 250 Ga. 704, 300 S.E.2d 668 (1983); State v. McCard, 173 Ga. App. 504, 326 S.E.2d 856 (1985).

Admission of the results from a blood-alcohol test in prosecution for homicide by vehicle was reversible error when the defendant was undeniably conscious and communicating with those present at the hospital where the defendant was taken to be treated after the accident, and the police officer did not follow the statutory obligation of informing the defendant of the right to refuse to take the test or the defendant's right to an independent chemical analysis. Carswell v. State, 171 Ga. App. 455, 320 S.E.2d 249 (1984), overruled on other grounds, Adcock v. State, 260 Ga. 302, 392 S.E.2d 886 (1990).

Conviction of driving under the influence of alcohol was reversed when the court erred in allowing into evidence a police officer's testimony that the appellant "failed" a roadside sobriety test administered to the appellant without the required foundation for such evidence. Channell v. State, 172 Ga. App. 156, 322 S.E.2d 356 (1984).

After the defendant made arrangements for an additional chemical analysis of the defendant's blood but was prevented from accomplishing this by the arresting officer acting under what the officer believed to be the predetermined policy of the police department and medical center which created barriers and denied the defendant the opportunity to obtain a test of the defendant's own choosing, the trial court erred in admitting the results of the intoximeter test. Gordon v. State, 190 Ga. App. 55, 378 S.E.2d 362 (1989).

Admission of the defendant's blood test results was harmful error when, although the card from which the arresting officer read the defendant the implied consent warning included a statement regarding the right to an independent test, the record was devoid of evidence that the defendant was offered an opportunity to schedule a second test. Norfleet v. State, 196 Ga. App. 548, 396 S.E.2d 237 (1990).

Warning that completely failed to inform a driver that the driver could choose the driver's own qualified person to administer the additional test made the intoximeter test administered by the state inadmissible. State v. Harrison, 216 Ga. App. 325, 453 S.E.2d 820 (1995).

Failure to advise the defendant of the right to an independent, additional blood alcohol test prevented the state from introducing the results of an additional, but not independent, blood test requested by the defendant as a result of the deficient warning. Jones v. State, 218 Ga. App. 675, 462 S.E.2d 804 (1995).

In a driving under the influence charge, the state's failure to provide the defendant a blood test after the defendant provided a breath sample on a state-administered breath test was a violation of O.C.G.A. § 40-6-392 and precluded the state from introducing evidence regarding its test. State v. Schmidt, 256 Ga. App. 749, 569 S.E.2d 630 (2002).

Trial court erred in denying the defendant's motion to suppress the results of the defendant's intoximeter test after the arresting officer failed to provide an independent blood test under O.C.G.A. § 40-6-392(a)(3), failed to use reasonable efforts to ensure that the defendant's blood was both drawn and tested, and the officer did not suggest any other testing alternatives, such as calling the defendant's personal physician or the defendant's lawyer, or submitting the sample to the state's crime lab; once the defendant invoked the right to an independent test, the officer had a duty to make reasonable efforts to accommodate the independent test. Cole v. State, 263 Ga. App. 222, 587 S.E.2d 314 (2003).

After a defendant was arrested for driving under the influence and asked for an independent test pursuant to O.C.G.A. § 40-6-392(a)(3), and the police deputy brought the defendant to a hospital where the deputy knew that the defendant could only have blood drawn at that hour but not tested, the deputy did not reasonably accommodate the defendant's request; accordingly, the trial court erred in failing to suppress the results of the test conducted by the deputy. Koontz v. State, 274 Ga. App. 248, 617 S.E.2d 207 (2005).

An arresting officer did not make a reasonable effort to accommodate a defendant's request for an independent blood test by qualified personnel of the defendant's own choosing, as required under O.C.G.A. §§ 40-5-67.1(b)(2) and40-6-392(a)(3), because the officer unilaterally chose the location for the independent test. State v. Metzager, 303 Ga. App. 17, 692 S.E.2d 687 (2010).

Even if the police were entitled to discover the result of the blood test by lawfully obtaining a warrant for the defendant's medical record, that did not change the fact that the result in the medical record was from a procedure that failed to comply with O.C.G.A. § 40-6-392, which governed the admissibility of state-administered blood alcohol tests, and the presence of a warrant did not cure the improper testing procedure that occurred; thus, the inevitable discovery doctrine did not provide an avenue for admission of the defendant's blood test results. State v. Padgett, 329 Ga. App. 747, 766 S.E.2d 143 (2014).

Trial court did not err in granting the defendant's motion to suppress a blood test for failing to comply with O.C.G.A. § 40-6-392 because, although an officer requested that the defendant's blood be drawn by a registered nurse at a hospital, the officer did not retain the sample for testing or request that the sample be sent to the state crime lab; the analysis of the defendant's blood was performed by the hospital; and the hospital's analysis of the defendant's blood sample did not comply with the requirements of the statute and was thus inadmissible. State v. Padgett, 329 Ga. App. 747, 766 S.E.2d 143 (2014).

When a suspect requests an independent test but is unable to obtain the test, the results of the state-administered test cannot be used by the state as evidence against the suspect unless the failure to obtain the test is justified; an accused's right to have an additional, independent chemical test or tests administered is invoked by some statement that reasonably could be construed, in light of the circumstances, to be an expression of a desire for such test. Wright v. State, 338 Ga. App. 216, 789 S.E.2d 424 (2016), cert. denied, No. S17C0046, 2017 Ga. LEXIS 209 (Ga. 2017).

Defendant's driving under the influence per se conviction was reversed because the trial court erred in admitting the results of the state-administered test because the defendant was not given an independent test after requesting one as the defendant's statements to the arresting officer could reasonably be construed as a request for an independent test and, therefore, the state-administered test results should have been suppressed. Wright v. State, 338 Ga. App. 216, 789 S.E.2d 424 (2016), cert. denied, No. S17C0046, 2017 Ga. LEXIS 209 (Ga. 2017).

- Trial court did not err in granting a DUI defendant's motion to suppress evidence of a state-administered breath test based on the state's failure, in disobedience of a discovery order granted by the trial court, to provide the defendant with information regarding the machine and the machine's training materials pursuant to O.C.G.A. § 40-6-392(a)(4). State v. Smiley, 301 Ga. App. 778, 689 S.E.2d 94 (2009).

- In a DUI case, the State was not required to disclose the computer source code for the Intoxilyzer 5000 used to measure defendant's blood alcohol under O.C.G.A. § 40-6-392(a)(4) because the State did not have access to the source code from the Intoxilyzer's Kentucky manufacturer and had not attempted to gain access to the code. Smith v. State, 325 Ga. App. 405, 750 S.E.2d 758 (2013).

- Suppression of the defendant's breath test was proper because the trial court found that the procedure used by the deputy to persuade the defendant to rescind an initial refusal-telling the defendant that the defendant could go home to the defendant's son if the defendant blew under the legal limit-was not fair or reasonable; the ruling depended on the credibility of the witnesses and the trial court correctly applied the law. State v. Rowell, 299 Ga. App. 238, 682 S.E.2d 343 (2009).

- Because the evidence sufficiently showed that the defendant's mental condition was clearly vulnerable, and that the defendant: (1) could not read; (2) had to be forcibly restrained while the consent form was initially being read; (3) was weeping while the remainder of the form was read; and (4) never actually signed the consent form, the trial court properly found that any consent to submit to blood and urine tests was not freely and voluntarily given. Moreover, the proper standard of review on appeal, based on the fact that credibility was an issue, was not a de novo standard, but a clearly erroneous standard. State v. Stephens, 289 Ga. App. 167, 657 S.E.2d 18 (2008).

Error in the admission, over the defendant's timely objection, of the results of a state-administered test was harmless when the evidence of the defendant's blood alcohol level merely corroborated other evidence including defendant's own statements that the defendant had been drinking heavily. Mooney v. State, 221 Ga. App. 420, 471 S.E.2d 904 (1996).

- Police officer's warning to anonresident defendant that "Under O.C.G.A. §§ 40-5-55 and40-5-153, you will lose your privilege to operate a motor vehicle from six to twelve months should you refuse to submit to the designated State administered chemical test" omitted the crucial fact that refusal to take the test would affect the defendant's ability to drive "on the highways of this state." Thus, the defendant was deprived of making an informed choice, and the test results were inadmissible; overruling, Anthony v. State, 211 Ga. App. 622, 441 S.E.2d 70 (1993) and State v. Reich, 210 Ga. App. 407, 436 S.E.2d 703 (1993). State v. Coleman, 216 Ga. App. 598, 455 S.E.2d 604 (1995).

When a nonresident defendant's consent to a chemical breath test was based at least in part on an officer's statement that the defendant's refusal to take the test would result in a six-month suspension of the defendant's out-of-state driver's license, a penalty which the state was unauthorized to carry out, the defendant was deprived of making an informed choice under the implied consent law, and the test results were inadmissible. Deckard v. State, 210 Ga. App. 421, 436 S.E.2d 536 (1993).

In a prosecution for driving under the influence, when the defendant was deprived by the totality of the inaccurate, misleading, and/or inapplicable information given to the defendant by the arresting officer of making an informed choice under the implied consent statute, the defendant's refusal to consent to a urine test was rendered inadmissible. State v. Leviner, 213 Ga. App. 99, 443 S.E.2d 688 (1994).

- State administered breath test does not require Miranda warnings. State v. Lord, 236 Ga. App. 868, 513 S.E.2d 25 (1999).

- Results of a blood test administered to the defendant while the defendant was unconscious were admissible. Thornberry v. State, 146 Ga. App. 827, 247 S.E.2d 495 (1978).

Even if the defendant was unconscious or semi-conscious, and thereby incapable of refusing to consent to a blood test, the results of the test were nevertheless admissible. Holmes v. State, 180 Ga. App. 787, 350 S.E.2d 497 (1986).

- Trial court properly admitted the results of a blood test performed by a hospital as a business record pursuant to former O.C.G.A. § 24-3-14 (see now O.C.G.A. § 24-8-803), at the defendant's trial for vehicular homicide, when the test was administered for the purpose of assisting in the defendant's medical treatment, was requested by the treating physician, not a law enforcement officer, and was not obtained for the purpose of showing that the defendant was in violation of the driving-under-the-influence statute. Jackson v. State, 196 Ga. App. 724, 397 S.E.2d 13 (1990).

It is not necessary that a blood alcohol test administered by a hospital in providing medical treatment be performed in compliance with the procedures of subsection (a) of O.C.G.A. § 40-6-392 in order to be considered a valid test for purposes of the inferences permitted under subsection (b) of that section. Dixon v. State, 227 Ga. App. 533, 489 S.E.2d 532 (1997).

Medical records certified by the records custodian of a hospital showing the results of an independent chemical test requested by the defendant were not admissible without further foundational evidence that would satisfy the requirements of the business records exception to the hearsay rule. Brahm v. State, 230 Ga. App. 407, 497 S.E.2d 240 (1998).

While the Supreme Court had held that the only acceptable methods of proving the qualification of the person who drew a defendant's blood was the certificate provided for in O.C.G.A. § 40-6-392(e), introduced by means of the business records exception to the hearsay rule and the testimony of the person who drew the blood, that did not prevent the same certificate from being admitted under other appropriate, hearsay exceptions, such as the public records exception. Bess v. State, 254 Ga. App. 80, 561 S.E.2d 209 (2002).

- Results of an intoximeter test, if improperly obtained, are subject to a motion to suppress, or alternatively, subject to objection at the time the evidence is offered as this is consistent with the statutory mandate that the use of such tests in criminal trials shall be subject to the strictest protections and within the parameters of O.C.G.A. § 17-5-30. State v. Johnston, 160 Ga. App. 71, 286 S.E.2d 47 (1981), aff'd, 249 Ga. 413, 291 S.E.2d 543 (1982).

When the defendant previously has not moved to suppress evidence, the results of defectively administered test are inadmissible over objection. State v. Johnston, 160 Ga. App. 71, 286 S.E.2d 47 (1981), aff'd, 249 Ga. 413, 291 S.E.2d 543 (1982).

- In a DUI case, the state's failure to offer evidence at a pre-trial hearing that the defendant had been informed of the defendant's statutory rights to additional chemical tests did not involve a constitutional issue and thus did not subject the test results to a motion to suppress; rather, a motion in limine was the proper device for obtaining a pre-trial ruling. Pierce v. State, 173 Ga. App. 551, 327 S.E.2d 531 (1985).

Motion alleging noncompliance with either O.C.G.A. § 40-6-392 or administrative regulations concerning the administration of a blood test may be raised only by way of a motion in limine. Sapp v. State, 184 Ga. App. 527, 362 S.E.2d 406 (1987).

Unlike a pre-trial motion in limine, the filing of a pre-trial motion to suppress, based on, for example, lack of probable cause for arrest, mandates that an evidentiary hearing "shall" be held outside the presence of the jury before the contested tangible evidence is admitted at trial. Sapp v. State, 184 Ga. App. 527, 362 S.E.2d 406 (1987).

Trial court properly denied the defendant's motion in limine, admitting an Intoxilyzer 5000's certificate of inspection as non-testimonial, as well as the defendant's breath test results; even if error was presented, it was harmless since the defendant was acquitted of driving under the influence with an unlawful blood alcohol concentration. Moreover, the incident report was properly admitted under the rule of completeness as the trial court was authorized to find that it was necessary for the state to admit all relevant parts of the incident report in evidence to show that the omissions noted by the defendant were not so material as to have effected the accuracy of the report. Phillips v. State, 289 Ga. App. 281, 656 S.E.2d 905 (2008).

Defendant's motion in limine claiming that an intoxilyzer's seizure of the defendant's breath samples was unlawful because the intoxilyzer's electronic components and operating parts were not properly attached and in good working order as required by O.C.G.A. § 40-6-392 was subject to the requirements of O.C.G.A. § 17-5-30, relating to motions to suppress. State v. Carter, 292 Ga. App. 322, 665 S.E.2d 14 (2008).

Foundation requirements for the admissibility of chemical test results do not have to be proved in front of the jury. Gaston v. State, 227 Ga. App. 666, 490 S.E.2d 198 (1997).

Defendant was properly not allowed to question an intoximeter operator outside the presence of the jury in order to show that the operator was not able to lay a foundation for the admissibility of the test results. Daniel v. State, 231 Ga. App. 125, 497 S.E.2d 656 (1998).

- Proper foundation showing that testing officer met all the requirements of paragraph (a)(1) of O.C.G.A. § 40-6-392 with regard to blood-alcohol tests was laid when an officer testified that the officer was trained and experienced, that the test was performed according to approved methods, and that the officer had a permit to operate the machine. Riley v. State, 175 Ga. App. 810, 334 S.E.2d 863 (1985); Broski v. State, 196 Ga. App. 116, 395 S.E.2d 317 (1990); Page v. State, 202 Ga. App. 828, 415 S.E.2d 487, cert. denied, 202 Ga. App. 907, 415 S.E.2d 487 (1992).

Police officer's testimony that the officer observed the defendant continuously from defendant's arrest until the time of testing was sufficient to satisfy any foundation requirement as to the admission of the test results. Lee v. State, 188 Ga. App. 912, 373 S.E.2d 28, cert. denied, 188 Ga. App. 912, 373 S.E.2d 28 (1988).

Proper foundation was laid when the officer who performed the test testified that the officer was certified to operate the machine and that the officer conducted the customary pretest procedures before administering the test, and there was also testimony that the machine, an Intoximeter 3000, was periodically serviced. Harris v. State, 199 Ga. App. 457, 405 S.E.2d 501 (1991).

Proper foundation for admission of test results was laid when, although the state was unable to produce the police officer who administered the test, the arresting officer testified that the officer was personally present and witnessed the administration of the test. Mullis v. State, 201 Ga. App. 75, 410 S.E.2d 182 (1991).

Proper foundation was established for admission of intoximeter test results when the state established that the examiner was a certified peace officer, that the examiner possessed a valid permit to operate the intoximeter, that the examiner continuously maintained that permit and that the examiner's permit was in effect on the day the examiner administered the test. Pratt v. State, 208 Ga. App. 617, 431 S.E.2d 397 (1993).

Results of a breath test were not inadmissible on the basis that the state trooper who inspected the machine did not actually test each component individually to determine if the machine was in good working order. Gaston v. State, 227 Ga. App. 666, 490 S.E.2d 198 (1997).

Testimony of a forensic chemist that the chemist was trained to use the intoxometer machine and used the machine almost daily, and that the machine was working properly and all of the machine's working parts were in order at the time of the test was sufficient to meet the foundational requirements of O.C.G.A. § 40-6-392. Waggoner v. State, 228 Ga. App. 148, 491 S.E.2d 88 (1997).

State presented an adequate foundation for admission of alcohol breath test results in a prosecution for driving under the influence since there was proof that the arresting officer was certified to operate the machine and had ensured that the machine was working properly before the breath test, and the officer also testified that the machine was periodically checked for calibration and that the machine had been calibrated a few weeks prior to the breath test. Pak v. State, 234 Ga. App. 538, 507 S.E.2d 166 (1998).

When it was undisputed that a machine used to analyze breath tests was routinely inspected, and that maintenance protocols were followed, a technician's testimony, in conjunction with the technician's certificates, was more than adequate to lay the foundation necessary to admit the defendant's breath test results. Hammontree v. State, 236 Ga. App. 342, 512 S.E.2d 342 (1999).

Sufficient evidence was offered to allow admission of the defendant's breath test in order to prove the defendant's violation of O.C.G.A. § 40-6-391(a)(5) when the oral testimony of the administering officer indicated the officer's qualifications and compliance with the approved methods of the test as required by O.C.G.A. § 40-6-392(a)(1)(A); the court found that an adequate foundation had been laid in order to admit the test results. Scara v. State, 259 Ga. App. 510, 577 S.E.2d 796 (2003).

Trial court did not err in allowing the Intoxilyzer results into evidence as the arresting officer testified that as to training and certification, the machine's inspection certificates were admitted, and the officer testified further that the machine passed the machine's own diagnostic test, appeared to be in good working order, and did not appear to have any parts missing. Stapleton v. State, 279 Ga. App. 296, 630 S.E.2d 769 (2006).

- Officer's testimony based on testing printouts produced by the intoximeter during the intoximeter's most recent inspection by another officer, who was unable to testify, was admissible and was sufficient to prove that the machine was operating in accordance with the requirements of O.C.G.A. § 40-6-392. Caldwell v. State, 230 Ga. App. 46, 495 S.E.2d 308 (1998).

Even though the testifying officer did not, personally, conduct the required testing of the machine, an adequate foundation was provided by the officer's testimony that the machine was in proper working order, as evidenced by "self-tests," and that a qualified officer signed the required certificate. Evans v. State, 230 Ga. App. 728, 497 S.E.2d 248 (1998).

"Self-authenticating" provision of subsection (f) of O.C.G.A. § 40-6-392 contained the proper foundation for admission of a certificate of inspection, and a further foundation under the "business records" exception of former O.C.G.A. § 24-3-14(b) (see now O.C.G.A. § 24-8-803) was not necessary. Jackson v. State, 233 Ga. App. 568, 504 S.E.2d 505 (1998).

Intoxilyzer test results were improperly excluded under O.C.G.A. § 40-6-392 since the state produced a properly prepared and executed certificate of inspection certifying that the electronic components and operating parts of the device were properly attached and in good working order. Any failure of the device to have passed an operational requirement by registering a 0.074 reading in the device's analysis of the control solution during the difference check went to the weight, not the admissibility, of the test results. State v. Carter, 292 Ga. App. 322, 665 S.E.2d 14 (2008).

- Trial court did not err in admitting testimony concerning the defendant's breath test in prosecution for driving under the influence when the arresting officer advised the defendant, pursuant to O.C.G.A. § 40-6-392, of the defendant's right to undergo additional chemical tests of the amount of alcohol in the defendant's blood and such officer administering the test testified as to the defendant's training to conduct such breath tests and the defendant's certificate, issued by the State Crime Laboratory (now Division of Forensic Sciences of Georgia Bureau of Investigation), was properly introduced into evidence. Fletcher v. State, 157 Ga. App. 707, 278 S.E.2d 444 (1981).

Admissibility of test results is controlled by the provisions of O.C.G.A. § 40-6-392 and, so long as a test has been conducted in compliance with those statutory provisions, an expert's opinion which questions the reliability of the results of that test would have no bearing on the admissibility of those results into evidence. Close v. State, 195 Ga. App. 652, 394 S.E.2d 563 (1990).

When the defendant refused to submit to a state-administered breath test, telling the officer that "attorneys in the past had advised him never to take the breath test," admission of evidence of the defendant's refusal was not error because, by defendant's own statement, the defendant demonstrated that the defendant was not deprived of an opportunity to make an informed choice. Allenbrand v. State, 217 Ga. App. 609, 458 S.E.2d 382 (1995).

- Police officer's testimony that the officer conducted the breath test, that the officer was certified to operate the machine, and that the machine appeared to be working properly, despite an apparent malfunction by the printer, was sufficient to lay a proper foundation for admission of the results of the test. Banks v. State, 235 Ga. App. 701, 509 S.E.2d 63 (1998).

- Proper foundation for the testimony of a police officer regarding an alco-sensor test the officer administered was laid by the officer's statement regarding the officer's training and experience, and testimony by that officer and another that the defendant showed positive for the presence of alcohol in the defendant's body was admissible. Gray v. State, 222 Ga. App. 626, 476 S.E.2d 12 (1996).

- When chemical analysis of defendant's blood at the time of the defendant's arrest approximately one hour after a collision showed a blood-alcohol level of .30 grams percent, the jury was authorized to infer that the defendant's blood-alcohol at the time of the collision was .08 grams percent or greater. The absence of testimony about the metabolic rate of alcohol in the blood so as to permit a calculation of blood-alcohol content at the actual time of the collision did not render the evidence insufficient to support the desired inference. Cheevers v. Clark, 214 Ga. App. 866, 449 S.E.2d 528 (1994).

- Evidence of defendant's .09 BAC was admissible to rebut the defendant's testimony regarding consumption of only three beers over a five hour period and the subsequent inference raised thereby that the defendant was not intoxicated. Jones v. State, 241 Ga. App. 515, 527 S.E.2d 223 (1999).

- Dismissal of an administrative action against the defendant to suspend the defendant's license for allegedly refusing to take a breath test is irrelevant to the question of refusal and to the question of the admissibility of evidence of refusal in a subsequent court proceeding. Sheffield v. State, 184 Ga. App. 141, 361 S.E.2d 28 (1987).

- Even though breach of the notice requirement renders evidence of the blood test administered by the state inadmissible to establish a presumption that the allegedly drunken driver was driving under the influence, such evidence should be admitted for impeachment purposes in the trial of a civil action. Ensley v. Jordan, 244 Ga. 435, 260 S.E.2d 480 (1979).

When the doctor who treated plaintiff-driver in the hospital emergency room following the accident detected what the doctor thought was the odor of alcohol about the plaintiff-driver and, without a request or direction by the officer, ordered a blood-alcohol test to be performed upon the plaintiff-driver in order to determine the type of anesthesia to use on plaintiff-driver, the blood-alcohol test results were admissible under former O.C.G.A. § 24-3-14 (see now O.C.G.A. § 24-8-803) as part of a hospital record made in the regular course of hospital business and, thus, compliance with paragraphs (a)(2) and (a)(3) of O.C.G.A. § 40-6-392 was not a prerequisite to the admission of the blood test results. Bynum v. Standard (Chevron) Oil Co., 157 Ga. App. 819, 278 S.E.2d 669 (1981).

Evidence of refusal to submit to blood-alcohol testing is admissible in civil cases. Stacy v. Caldwell, 186 Ga. App. 293, 367 S.E.2d 73, cert. denied, 186 Ga. App. 919, 367 S.E.2d 73 (1988).

In an action for damages for injuries sustained in an automobile collision, the trial court did not err in permitting an examining and treating physician to testify concerning the defendant's intoxication utilizing the hospital business records as well as the physician's observation of the defendant during examination in the hospital. Studebaker's of Savannah, Inc. v. Tibbs, 195 Ga. App. 142, 392 S.E.2d 908 (1990).

- Although the admissibility of test results was affected by the state's failure to lay a proper foundation, by failing to object when testimony as to the results was offered, the defendant waived any objection the defendant could have made and the testimony was not illegally admitted. Carr v. State, 222 Ga. App. 776, 476 S.E.2d 75 (1996).

Printout reflecting an "insufficient sample," and thus no analysis and no result, is not subject to discovery under O.C.G.A. § 17-16-23 because if there is no test and no result, there is nothing to discover. State v. Tan, 305 Ga. App. 55, 699 S.E.2d 74 (2010).

- Since there was no attempt by the defense to push for discovery of the printout from a gas chromatograph, no refusal by the state to produce that document, and no request by the defense for a continuance for additional time to examine the printout, which was available at trial, the trial court did not abuse the court's discretion in admitting the testimony of the state's expert witness, despite the prosecutor's failure to produce the printout before trial. Birdsall v. State, 254 Ga. App. 555, 562 S.E.2d 841 (2002).

Despite a contention by the defendant that the inspection certificates for the Intoxilyzer 5000 were inadmissible hearsay, the evidence was properly admitted based on the officer's testimony independent of the inspection certificates. Braswell v. State, 281 Ga. App. 500, 636 S.E.2d 689 (2006).

Because the evidence sufficiently showed that the defendant asked for a blood test in response to the officer's request to submit to the state-administered breath test, clearly attempting to designate the state-administered test, not request an independent test, and the defendant understood that the type of test that would be done was solely of the state's choosing, the trial court properly denied a motion to suppress the breath test results obtained. Brooks v. State, 285 Ga. App. 624, 647 S.E.2d 328 (2007).

In a prosecution for DUI, the trial court did not err in denying the defendant's motion to suppress the blood test evidence as the trial court properly allowed the discovery of notes, memoranda, graphs, or computer printouts pertaining to the blood sample taken, as well as all chain of custody documentation, because they were the only items deemed relevant to the prosecution; suppression of the blood test results was not required, as the defendant waived error on appeal as to the absence of one of the two lab testers. Cottrell v. State, 287 Ga. App. 89, 651 S.E.2d 444 (2007), cert. denied, No. S07C1894, 2007 Ga. LEXIS 816 (Ga. 2007).

Trial court did not err in denying the defendant's motion to suppress and motion in limine to exclude the defendant's field sobriety test results because the officers who stopped the defendant's vehicle were not required to advise the defendant of the defendant's Miranda rights prior to the field sobriety testing since although the defendant was not free to leave, the defendant was not handcuffed or placed in the patrol car during the investigation, and in addition to informing the defendant of the reason for the stop, the officers told the defendant that the officers had to wait for a HEAT Unit officer to determine whether the defendant was too impaired to safely operate the defendant's vehicle; based upon the circumstances, the trial court was authorized to find that a reasonable person would believe that the defendant's freedom of action was only temporarily curtailed pending further investigation during the traffic stop, and the delay of approximately twenty-five minutes between the initial stop and the HEAT Unit officer's arrival at the scene did not automatically convert the investigation into a custodial situation. Waters v. State, 306 Ga. App. 114, 701 S.E.2d 550 (2010).

Ga. L. 1974, p. 633, § 1 (see now O.C.G.A. § 40-6-392) is evidentiary in nature rather than substantive. Head v. State, 246 Ga. 360, 271 S.E.2d 452 (1980).

- Defendant's objections to blood and urine evidence, based on allegations that the state failed to comply with O.C.G.A. § 40-6-392, were not raised at the time the evidence was introduced and were therefore waived. Glover v. State, 230 Ga. App. 795, 498 S.E.2d 300 (1998).

- Ruling of the trial court that since the officer failed to inform this defendant of the defendant's rights under O.C.G.A. § 40-6-392 at the time of arrest the results of the alcohol test should be suppressed constituted a construction of the term "time of arrest" which was too narrow and restrictive and was clearly erroneous. State v. Lubin, 164 Ga. App. 689, 297 S.E.2d 371 (1982).

- When the result of an intoximeter test indicated that there was .15 percent alcohol content in the blood, the results give rise to a presumption of intoxication. Helmly v. State, 142 Ga. App. 577, 236 S.E.2d 540 (1977).

In an evaluation of the sufficiency of the evidence, when the petitioner was convicted of voluntary manslaughter, the court considered evidence as to the percentage of alcohol in the victim's blood, but did not rely on this statutory presumption. Holloway v. McElroy, 632 F.2d 605 (5th Cir. 1980), cert. denied, 451 U.S. 1028, 101 S. Ct. 3019, 69 L. Ed. 2d 398 (1981).

Court may charge that the "presumption" authorized by a breathalyzer reading of more than .10 alcohol in the blood creates merely a "permissive presumption." Such a presumption allows, but does not require, the trier of fact to infer the elemental fact from proof by the prosecutor of a basic one and does not place any kind of burden upon the defendant. McCann v. State, 167 Ga. App. 368, 306 S.E.2d 681 (1983), cert. denied, 464 U.S. 1044, 104 S. Ct. 711, 79 L. Ed. 2d 174 (1984).

- Presumption of sobriety contained in paragraph (b)(1) of O.C.G.A. § 40-6-392 is irrelevant when the ultimate issue before the jury is the defendant's impaired ability to drive as the result of being under the influence of a drug. Perano v. State, 167 Ga. App. 560, 307 S.E.2d 64 (1983).

- In a defendant's prosecution for driving under the influence under O.C.G.A. § 40-6-391, the inspection certificate for the instrument used to conduct the defendant's breath test under O.C.G.A. § 40-6-392(f) was properly admitted because it was not testimonial hearsay and did not violate the defendant's rights of confrontation; it was a business record that was not made in an investigatory or adversarial setting or generated in anticipation of the prosecution of a particular defendant. Rackoff v. State, 281 Ga. 306, 637 S.E.2d 706 (2006).

§ 40-6-391(k)(1). - Although O.C.G.A. § 40-6-392(b)(1) provided that it was to be presumed that persons with an alcohol concentration of .05 were not under the influence of alcohol, that statutory provision did not apply to a charge that a person under the age of 21 violated O.C.G.A. § 40-6-391(k)(1) with an alcohol concentration of .02 or more, and since that was part of the charge in the defendant's case, the presumption did not apply. David v. State, 261 Ga. App. 468, 583 S.E.2d 135 (2003).

- When the trial court properly granted a defendant's motion to suppress the results of the intoximeter test because of a de facto denial of the defendant's right to have an additional test of the defendant's own choosing, there was sufficient competent circumstantial evidence to authorize the reasonable trier of fact to find the appellant guilty beyond a reasonable doubt of driving under the influence of alcohol. Porter v. State, 195 Ga. App. 388, 393 S.E.2d 513 (1990).

- Defendant pointed to no evidence showing that the source code for a breath testing device was within the possession, custody, or control of the state. Thus, the trial court properly denied the defendant's motion to discover the source code. Mathis v. State, 298 Ga. App. 817, 681 S.E.2d 179 (2009).

Defendant failed to show that the trial court erred in denying the defendant's request for a certificate of materiality seeking the source code for the device that was used to test the defendant's blood-alcohol content, because the defendant presented no admissible evidence during the hearing on the motion and no evidence to support the factual contention that the provider was acting as an arm of law enforcement and that the provider and the state were joint participants in an enterprise. Parker v. State, 326 Ga. App. 217, 756 S.E.2d 300 (2014).

- In a wrongful death action, the trial court erred in giving a jury instruction in the language of O.C.G.A. § 40-6-392(c) because the evidence indicated that the decedent crossed the street between an intersection with a traffic signal and an intersection with a stop sign, not between adjacent intersections at which traffic-control signals were used. Silvers v. Kimbell, 219 Ga. App. 482, 465 S.E.2d 530 (1995).

- The determination of whether evidence of chemical test results should be admitted under O.C.G.A. § 40-6-392(a)(1)(A) is never a jury question and, therefore, the court did not err in refusing to charge the jury as to the foundation requirements of that section. Burke v. State, 233 Ga. App. 778, 505 S.E.2d 528 (1998).

- Any person who drives or operates a motor vehicle upon the highways of Georgia shall be deemed to have given consent to a chemical test for the purpose of determining the alcoholic content of the driver's blood if the driver is lawfully arrested for any offense that is allegedly committed while driving or operating a vehicle under the influence of intoxicating liquor. Thus, after submitting to the test as is required by law, such evidence may be used for any offense that is allegedly committed while the person is driving or operating a vehicle under the influence of intoxicating liquor; but, the test result is not allowed for offenses which allegedly arise after the driving has ceased. Franklin v. State, 136 Ga. App. 47, 220 S.E.2d 60 (1975).

- Proceedings to suspend driving privileges are strictly civil or administrative in nature since no criminal consequences result from a finding adverse to the accused. Cogdill v. Department of Pub. Safety, 135 Ga. App. 339, 217 S.E.2d 502 (1975).

- State is required to produce either a properly authenticated record that the photoelectric intoximeter (or breath analyzer) was of a design specifically approved by the director of the State Crime Laboratory (now Division of Forensic Sciences of the Georgia Bureau of Investigation), or the testimony of the director personally to that effect. Smitherman v. State, 153 Ga. App. 322, 265 S.E.2d 119 (1980).

Under Department of Public Safety Rule 570-9.06(5), effective October 31, 1979, the approval of the State Crime Laboratory director (now Division of Forensic Sciences of the Georgia Bureau of Investigation) was needed only for the design of any type of breath analyzer used in this state. Willoughby v. State, 153 Ga. App. 434, 265 S.E.2d 352 (1980).

When the intoximeter was furnished by the Department of Public Safety it may be inferred that the intoximeter's design was specifically approved by the director of the State Crime Laboratory (now Division of Forensic Sciences of the Georgia Bureau of Investigation). McCann v. State, 158 Ga. App. 202, 279 S.E.2d 499 (1981).

- State has burden of proving that seizure of appellee's breath resulting in intoximeter results was in accordance with mandated procedures. State v. Johnston, 160 Ga. App. 71, 286 S.E.2d 47 (1981), aff'd, 249 Ga. 413, 291 S.E.2d 543 (1982).

In the absence of proof that the equipment utilized in the test is of the approved type under Department of Public Safety rules or has the approval of the Director of the Division of Forensic Sciences of the Georgia Bureau of Investigation the test results of the intoximeter are inadmissible. State v. Johnston, 160 Ga. App. 71, 286 S.E.2d 47 (1981), aff'd, 249 Ga. 413, 291 S.E.2d 543 (1982).

Regardless of whether the issue is addressed in a hearing on a "motion in limine" or on a "motion to suppress," the state bears the burden of proving that its evidence meets the requirements of O.C.G.A. § 40-6-392 when the state seeks to prove a defendant's criminal liability by the introduction of evidence of an intoximeter test. McElroy v. State, 173 Ga. App. 685, 327 S.E.2d 805 (1985).

In the absence of testimony by a defendant that the defendant was refused the opportunity for an independent test, the state's burden is merely to show that the defendant was properly advised of the defendant's rights. Tiller v. State, 176 Ga. App. 797, 338 S.E.2d 42 (1985).

Trial court's jury charge on blood alcohol contents over .10 percent and .12 percent under former paragraphs (b)(3) and (b)(4) of O.C.G.A. § 40-6-392, when the defendant was formally charged with violating O.C.G.A. § 40-6-391(a)(1), did not impermissibly shift the burden of proof and allow the jury to convict the defendant of an offense different than the one charged. Waters v. State, 195 Ga. App. 288, 393 S.E.2d 280 (1990), cert. denied, 498 U.S. 970, 111 S. Ct. 437, 112 L. Ed. 2d 420 (1990).

State may meet the burden of establishing the sufficiency of blood-alcohol tests by introducing a certificate of the manufacturer of the machine and certificates of officers who administered the test for the current charge and who performed the test on the defendant for a prior similar transaction. Conner v. State, 205 Ga. App. 564, 422 S.E.2d 872, cert. denied, 205 Ga. App. 899, 422 S.E.2d 872 (1992).

- Defendant has the right to subpoena memos, notes, graphs, computer print-outs, and other data relied upon by a state crime lab chemist in obtaining gas chromatography test results, but a trial court has discretion to quash an unreasonable and oppressive subpoena. Townsend v. State, 236 Ga. App. 530, 511 S.E.2d 587 (1999).

Prejudicial error was not shown when the trial granted a motion to quash a subpoena for production of test reports, but ruled that an expert forensic chemist of the defendant's selection would be permitted to examine a sample of the blood and directed that a sample be released to the defendant since the court thereby provided the defendant with the means to effectively challenge the validity of the sample and accuracy of the state's testing procedures and results. Townsend v. State, 236 Ga. App. 530, 511 S.E.2d 587 (1999).

- In the absence of waiver and without notice to the accused or an opportunity to object, it was not "appropriate" under former O.C.G.A. § 24-9-40 (see now O.C.G.A. § 24-12-1) for the state in a criminal case to subpoena a defendant's own personal medical records which were then in the possession of a physician, hospital, or health care facility. King v. State, 272 Ga. 788, 535 S.E.2d 492 (2000).

- Court may explain to jurors that autointoximeter is considered accurate if properly operated without violating O.C.G.A. § 17-8-55 (see O.C.G.A. § 17-8-57), which provides: "It is error for any judge in any criminal case, during its progress . . ., to express or intimate his opinion as to what has or has not been proved or as to the guilt of the accused." Henson v. State, 168 Ga. App. 210, 308 S.E.2d 555 (1983).

- In a prosecution for driving with an unlawful blood-alcohol level, the defendant was entitled to subpoena from the state's forensic chemist the chain of custody documents and other documentation which pertained to the actual test of the defendant's blood including gas chromatograph results. Bazemore v. State, 244 Ga. App. 460, 535 S.E.2d 830 (2000).

In a prosecution for driving with an unlawful blood-alcohol level, documents which pertained to the qualifications of the person who drew the defendant's blood and certification documentation for the machine were not sufficiently relevant to be discovered by the defendant. Bazemore v. State, 244 Ga. App. 460, 535 S.E.2d 830 (2000).

- Oral testimony by a police officer that the officer was certified to operate a particular model of intoximeter at the time the officer tested the defendant was not barred by the best evidence rule. Clarke v. State, 170 Ga. App. 852, 319 S.E.2d 16 (1984).

- In a prosecution for driving under the influence, when the state rested without producing the testimony of the officer who read the defendant the implied consent notice required by O.C.G.A. § 40-6-392(a)(4), the trial court did not abuse the court's discretion by allowing the state to reopen the state's case to produce this officer's testimony because the defendant had notice that this officer was a witness and could anticipate that the officer would be called to testify, and the defendant could not show that the trial court's actions prejudiced the defendant's ability to present a defense. Painter v. State, 263 Ga. App. 407, 587 S.E.2d 867 (2003).

- Amendments adopted since 1980 to the implied consent rules, issued under the auspices of the Department of Public Safety but in fact formulated by the Division of Forensic Sciences pursuant to the mandate of O.C.G.A. § 40-6-392, have been promulgated in substantial compliance with pertinent statutory requirements and thus are valid and effective against the defendants in a criminal action. State v. Holton, 173 Ga. App. 241, 326 S.E.2d 235 (1984).

- Testing of the intoximeter machine nearly five months after the charged incident would not prove that the machine gave an inaccurate reading for the defendant since the original test's condition, including the defendant's own physical condition, could not have been duplicated. Walters v. State, 195 Ga. App. 434, 394 S.E.2d 105 (1990).

- When the state lays the proper foundation for the introduction of intoximeter test results, the defendant's challenge to the reliability of the test results does not affect the admissibility of the results but goes merely to the weight to be placed on the results by the jury. Sanders v. State, 176 Ga. App. 869, 338 S.E.2d 5 (1985).

Discrepancy in testimony as to a driver's request for an additional test simply creates a question of credibility for the trial court on a motion to suppress. Cunningham v. State, 255 Ga. 35, 334 S.E.2d 656 (1985); Curtis v. State, 182 Ga. App. 388, 355 S.E.2d 741 (1987).

Conflicting testimony of driver and arresting officer concerning advisement of right to independent test was a matter of credibility to be resolved by the trial court, no showing of an affirmative waiver being required of the state. Osteen v. State, 176 Ga. App. 722, 337 S.E.2d 369 (1985).

When there is a conflict over whether a defendant was advised of the defendant's right to an additional test, resolution of the question of credibility is for the trial court. McNair v. State, 177 Ga. App. 502, 339 S.E.2d 773 (1986); Lovell v. State, 178 Ga. App. 366, 343 S.E.2d 414 (1986).

- When, contrary to other evidence, the defendant testified that the implied consent warnings were not read to the defendant at the scene of the defendant's arrest or at the sheriff's office and that the defendant had the money to pay for such a test, but two or three deputies told the defendant that the defendant did not want the test because the test cost too much, and defendant contended it was error to deny the defendant's motion to suppress the results of the intoximeter test because the defendant was denied the defendant's right to an independent blood test, the Court of Appeals would not reverse the ruling of the trial court because the evidence did not demand a finding contrary to the judge's determination. Branch v. State, 182 Ga. App. 818, 357 S.E.2d 136 (1987).

- Investigating officer had a reasonable articulable suspicion to stop the defendant's vehicle based on a violation of O.C.G.A. § 40-6-40 for driving on the wrong side of the road; hence, the defendant's motion to suppress was properly denied on this ground. Dunbar v. State, 283 Ga. App. 872, 643 S.E.2d 292 (2007).

- When it was uncontroverted in three consolidated cases that the arresting officer did not inform the defendant of the defendant's right, after submission to the state-administered test, to have an independent test administered by a qualified person of the defendant's own choosing, the trial court properly granted the defendant-appellees' motions to exclude the results of the state-administered tests or the refusal to submit to such testing. State v. Hassett, 216 Ga. App. 114, 453 S.E.2d 508 (1995).

- Trial court erred in allowing the officer to respond to a question regarding the legal limit for DUI; however, this error did not warrant reversal. Taylor v. State, 204 Ga. App. 489, 419 S.E.2d 745 (1992).

- Giving the state's requested charge that the appellant's refusal to permit a chemical analysis of the appellant's blood, breath, or urine was admissible in evidence was not error. Wyatt v. State, 179 Ga. App. 327, 346 S.E.2d 387 (1986).

- When the defendant accepted the benefit of the trial court's ruling suppressing the results of the chemical tests administered by the state, and finding that the defendant was capable of withdrawing defendant's consent to testing and indeed refused the request to test, the defendant was prohibited on appeal to reverse that position and argue that the defendant did not refuse. Gantt v. State, 263 Ga. App. 102, 587 S.E.2d 255 (2003).

Jury Instructions

Instruction on presumption of sobriety.

- Trial court did not err by failing to give the jury the defendant's requested instruction on the statutory presumption of sobriety as set forth in O.C.G.A. § 40-6-392(b)(1) because the defendant's request was predicated upon the driving under the influence (DUI) less safe count of the indictment, of which the jury found the defendant not guilty; O.C.G.A. § 40-6-392(b)(1) applied only to DUI less safe violations and did not entitle the defendant to a presumption of sobriety with respect to the defendant's reckless driving violation. Travis v. State, 314 Ga. App. 280, 724 S.E.2d 15 (2012).

- When the trial judge, in instructing the jury on presumption under Ga. L. 1974, p. 633, § 1 (see O.C.G.A. § 40-6-392), failed to instruct that such presumption was rebuttable, and when there was no request for more specific instructions, such error, if any, was harmless in light of the defendant's admission that the defendant was far under the influence of alcohol at time the defendant was stopped. Prickett v. State, 155 Ga. App. 668, 272 S.E.2d 534 (1980).

When the trial court in the case before the court charged that the presumption arising from the results of a breathalyzer test was rebuttable, the Court of Appeals rejected the argument that the charge was either burden shifting in the first instance or that the charge became so because the defendant offered no evidence in the defendant's own behalf. Brown v. State, 174 Ga. App. 470, 330 S.E.2d 408 (1985).

No explanation to the jury about the rebuttal of presumptions in O.C.G.A. § 40-6-392 was necessary when the trial court referred to the presumptions in the court's charge to the jury, but also clearly stated that under the state's accusation against the defendant those presumptions did not apply. Stewart v. State, 176 Ga. App. 148, 335 S.E.2d 603 (1985).

Trial court's jury charge that the presumption arising from an alcohol concentration of 0.05 or less is rebuttable was correct and did not shift the burden of proof to the defendant. Cornell v. State, 239 Ga. App. 127, 520 S.E.2d 782 (1999).

- In a prosecution for driving under the influence - less safe driver, it was error to charge to the jury that if the jury believed the defendant's alcohol concentration was .08 percent or more "it shall be inferred" that the defendant was under the influence of alcohol, and the giving of generalized instructions regarding the state's burden and the jury's responsibilities was insufficient to overcome the mandatory nature of the instruction. Stepic v. State, 226 Ga. App. 734, 487 S.E.2d 643 (1997).

- Charge in the language of O.C.G.A. § 40-6-392(b) that if the blood level exceeds certain amounts there shall be a presumption that the person was under the influence of alcohol as prohibited by provisions of O.C.G.A. § 40-6-391(a) is impermissible burden shifting but, even if improperly given, it is not relevant to the determination of any crime defined in that subsection and does not require reversal. Knapp v. State, 229 Ga. App. 175, 493 S.E.2d 583 (1997).

- Instruction: "I charge you that breath alcohol measuring equipment approved by the State Crime Lab is considered accurate if properly operated" was a correct statement of the law and did not invade the province of the jury or shift the burden of proof. Johnson v. State, 231 Ga. App. 215, 498 S.E.2d 778 (1998).

As certificates of inspection regarding an Intoxilyzer 5000 used in the defendant's criminal matter were properly admitted pursuant to the business records exception to the hearsay rule under former O.C.G.A. § 24-3-14 (see now O.C.G.A. § 24-8-803) and O.C.G.A. § 40-6-392(f), the trial court's refusal to given the limiting instruction regarding their use, as requested by the defendant, was not reversible error. Neal v. State, 281 Ga. App. 261, 635 S.E.2d 864 (2006).

In a prosecution for driving with an alcohol concentration greater than 0.08 grams, O.C.G.A. § 40-6-391(a)(5), the trial court properly instructed the jury that equipment used to measure alcohol content that was approved by the Georgia State Crime Lab was considered accurate if properly operated as this was simply an explanation of O.C.G.A. § 40-6- 392(a)(1)(A). Goethe v. State, 294 Ga. App. 232, 668 S.E.2d 859 (2008).

- Instruction which stated "in any criminal trial the refusal of the defendant to permit a chemical analysis to be made of her blood, breath, urine or other bodily substances at the time of her arrest shall be admissible into evidence against her" did not mandate the jury to infer guilt from the defendant's refusal. Rayburn v. State, 234 Ga. App. 482, 506 S.E.2d 876 (1998).

Trial court did not err in charging the jury during the defendant's trial for driving under the influence of alcohol to the extent that it was less safe for the defendant to drive because the challenged charge immediately followed a proper charge regarding the implications of a defendant's refusal to submit to tests, and the defendant failed to show what harm the defendant suffered as the result of the giving of the jury instruction; the charge was adjusted to the evidence because the testimony adduced at trial showed that the defendant was speeding immediately prior to the defendant's arrest, and the charge properly left the determination of whether the defendant was impaired in the hands of the jury. Crusselle v. State, 303 Ga. App. 879, 694 S.E.2d 707 (2010).

- It was reversible error when the judge instructed the jury that "if there was at that time an alcohol concentration of 0.08 grams or more, it shall be inferred that the person was under the influence of alcohol as prohibited by Code Section40-6-391" since, although this paraphrased the language of paragraph (b)(3) of O.C.G.A. § 40-6-392, it impermissibly shifted the burden to the defendant to prove the defendant's innocence of the driving under the influence charge under O.C.G.A. § 40-6-391(a)(1). Davis v. State, 236 Ga. App. 32, 510 S.E.2d 889 (1999), overruled on other grounds by Willis v. State, 2018 Ga. LEXIS 685 (Ga. 2018).

- In a case in which the defendant was convicted of driving under the influence of alcohol with an unlawful blood alcohol concentration, the trial court erred in charging the jury since, as given, the charge implied that the analysis or result for a particular individual "shall be considered valid," and mandated that the jury find valid the test results showing that the defendant's blood alcohol level exceeded the legal limit. Bailey v. State, 323 Ga. App. 424, 747 S.E.2d 210 (2013).

- Instruction that the implied consent warning does not have to be read in Spanish to a Spanish-speaking individual was authorized under the authority of State v. Tosar, 180 Ga. App. 885, 350 S.E.2d 811 (1986). Hernandez v. State, 238 Ga. App. 796, 520 S.E.2d 698 (1999).

Even in view of evidence that a Spanish speaking defendant did not understand implied consent warnings, the trial court's instruction that the defendant's refusal to submit to testing could be considered as evidence creating an inference that the test would show the presence of alcohol or drugs was not error since the court also charged that this inference was rebuttable. Hernandez v. State, 238 Ga. App. 796, 520 S.E.2d 698 (1999).

- Criminal defendant was not entitled to jury instructions based on the presumptions in O.C.G.A. § 40-6-392 when the defendant was on trial for vehicular homicide, and evidence of the defendant's blood-alcohol level was not admitted to show that the defendant was driving under the influence but was admitted as a circumstance of the defendant's arrest for vehicular homicide through reckless driving. Collum v. State, 195 Ga. App. 42, 392 S.E.2d 301 (1990).

- Trial court was not in error with respect to the defendant when the court's charge to the jury was derived entirely from the wording of O.C.G.A. § 40-6-392, since such a charge is not conclusive as to the issue of whether the defendant had been under the influence of alcohol at the time the defendant drove the automobile. Morris v. State, 172 Ga. App. 832, 324 S.E.2d 793 (1984).

- Trial court's error in charging the burden-shifting language of former paragraph (b)(3) of O.C.G.A. § 40-6-392 required the reversal of the defendant's conviction inasmuch as the defendant was tried only for violating O.C.G.A. § 40-6-391(a)(1). King v. State, 200 Ga. App. 511, 408 S.E.2d 509 (1991).

- Although jury instructions concerning being a less safe driver under O.C.G.A. § 40-6- 391(a)(1)-(3) and the inferences listed in paragraphs (b)(1)-(3) (see now paragraph (b)91), (b)(2)) are superfluous in a prosecution under O.C.G.A. § 40-6-391 for driving while under the influence by having .12 percent or more alcohol in the blood, the additional language is not harmful when the jury is informed of the legal ramifications of a blood-alcohol content of over .12 percent and there is evidence that the defendant's blood-alcohol content was greater than .12 percent. Courson v. State, 184 Ga. App. 793, 363 S.E.2d 41 (1987).

- Court's erroneous charge on the conclusions that may be drawn according to various blood alcohol levels using the prohibited term "presumption" was not corrected by the court's subsequent amendment substituting the term "inference" for the prohibited term. Holcomb v. State, 217 Ga. App. 482, 458 S.E.2d 159 (1995).

OPINIONS OF THE ATTORNEY GENERAL

Editor's notes.

- In light of the similarity of the statutory provisions, opinions under former Code 1933, § 68-1625.1, are included in the annotations for this Code section.

- Provisions of O.C.G.A. § 40-6-392 which merely provide new trial procedures may be applied to all cases tried on or after September 1, 1983, regardless of when the violations occurred. All other provisions can be applied only to defendants whose alleged illegal conduct occurred on or after September 1, 1983. 1983 Op. Att'y Gen. No. U83-52.

In context of former Code 1933, § 64B-306 (see now O.C.G.A. § 40-5-55), driver has no election of chemical test to be administered. 1977 Op. Att'y Gen. No. 77-21.

Driver must be informed of the driver's right to an additional test so that the driver may challenge the accuracy of the chemical test administered by the state. 1977 Op. Att'y Gen. No. 77-21.

Responsibility of obtaining the additional tests rests with the driver. 1977 Op. Att'y Gen. No. 77-21.

- It is only with regard to the independent or additional test that the driver may designate the chemical test to be administered. 1977 Op. Att'y Gen. No. 77-21.

For legal status and effect of alcolyzer test, see 1972 Op. Att'y Gen. No. 72-46 (rendered under former Code 1933, § 68-1625.1).

- Evidence of the amount of alcohol or drug in the tested person's blood is admissible in any civil or criminal action arising out of the acts alleged to have been committed while the person was driving under the influence of alcohol or other drugs. 1976 Op. Att'y Gen. No. 76-11.

- If the person given a blood alcohol test requests the results of the test, then a copy of the blood-alcohol report should be given to that person or their attorney; copies of blood-alcohol reports should not be distributed under any other circumstances unless a subpoena is issued from a court of competent jurisdiction. 1976 Op. Att'y Gen. No. 76-11.

RESEARCH REFERENCES

Am. Jur. 2d.

- 7A Am. Jur. 2d, Automobiles and Highway Traffic, § 350 et seq. 8 Am. Jur. 2d, Automobiles and Highway Traffic, § 955 et seq.

Proof and Disproof of Alcohol-Induced Driving Impairment Through Breath Alcohol Testing, 4 POF3d 229.

Proof and Disproof of Alcohol-Induced Driving Impairment Through Evidence of Observable Intoxication and Coordination Testing, 9 POF3d 459.

The Impaired Driver - Ascertaining Physical Condition, 4 Am. Jur. Trials 615.

Defense on Charge of Driving While Intoxicated, 19 Am. Jur. Trials 123.

Failure to Protect Public From an Intoxicated Driver, 34 Am. Jur. Trials 499.

Driving Under the Influence: Tactical Considerations in Sobriety Checkpoint Cases, 59 Am. Jur. Trials 79.

Trial Defenses to a Breath Test Score, 70 Am. Jur. Trials 1.

Litigating a Driving While Intoxicated Case, 76 Am. Jur. Trials 213.

- 61A C.J.S., Motor Vehicles, §§ 1592, 1597, 1607.

- Driving automobile while intoxicated as a substantive criminal offense, 42 A.L.R. 1498; 49 A.L.R. 1392; 68 A.L.R. 1356; 142 A.L.R. 555.

Admissibility and weight of evidence based on scientific test for intoxication or presence of alcohol in system, 127 A.L.R. 1513; 159 A.L.R. 209.

Degree or nature of intoxication for purposes of statute or ordinance making it a criminal offense to operate an automobile while in that condition, 142 A.L.R. 555.

Requiring submission to physical examination or test as violation of constitutional rights, 164 A.L.R. 967; 25 A.L.R.2d 1407.

Validity of legislation creating presumption of intoxication or the like from presence of specified percentage of alcohol in blood, 46 A.L.R.2d 1176.

Qualification as expert to testify as to findings or results of scientific test to determine alcoholic content of blood, 77 A.L.R.2d 971.

Construction and application of statutes creating presumption or other inference of intoxication from specified percentages of alcohol present in system, 16 A.L.R.3d 748.

Admissibility in criminal case of blood alcohol test where blood was taken from unconscious driver, 72 A.L.R.3d 325.

Driving while intoxicated: duty of law enforcement officer to offer suspect chemical sobriety test under implied consent law, 95 A.L.R.3d 710.

Necessity and sufficiency of proof that tests of blood alcohol concentration were conducted in conformance with prescribed methods, 96 A.L.R.3d 745.

Request before submitting to chemical sobriety test to communicate with counsel as refusal to take test, 97 A.L.R.3d 852.

Request for prior administration of additional test as constituting refusal to submit to chemical sobriety test under implied consent law, 98 A.L.R.3d 572.

Evidence of automobile passenger's blood-alcohol level as admissible in support of defense that passenger was contributorily negligent or assumed risk of automobile accident, 5 A.L.R.4th 1194.

Admissibility in criminal case of blood-alcohol test where blood was taken despite defendant's objections or refusal to submit to test, 14 A.L.R.4th 690.

Admissibility in criminal case of evidence that accused refused to take test of intoxication, 26 A.L.R.4th 1112.

Drunk driving: Motorist's right to private sobriety test, 45 A.L.R.4th 11.

Validity, construction, and application of statutes directly proscribing driving with blood-alcohol level in excess of established percentage, 54 A.L.R.4th 149.

Sufficiency of showing of physical inability to take tests for driving while intoxicated to justify refusal, 68 A.L.R.4th 776.

Challenges to use of breath tests for drunk drivers based on claim that partition or conversion ratio between measured breath alcohol and actual blood alcohol is inaccurate, 90 A.L.R.4th 155.

Driving while intoxicated: subsequent consent to sobriety test as affecting initial refusal, 28 A.L.R.5th 459.

Authentication of blood sample taken from human body for purposes of determining blood alcohol content, 76 A.L.R.5th 1.

Authentication of organic nonblood specimen taken from human body for purposes of analysis, 78 A.L.R.5th 1.

Admissibility and sufficiency of extrapolation evidence in DUI prosecutions, 119 A.L.R.5th 379.