Caldwell v. State , 230 Ga. App. 46 ( 1997 )

Beasley, Judge.

Anna L. Caldwell was convicted of driving under the influence for having in her blood an alcohol concentration of .10 grams or more within three hours after driving on October 23, 1995. OCGA § 40-6-391 (a) (4), redesignated OCGA § 40-6-391 (a) (5) by Ga. L. 1996, p. 1413. The sole enumeration of error relates to the admission in evidence of the chemical test results. Caldwell maintains the prosecution failed to lay the foundation required under OCGA § 40-6-392 (a) (1) (A) to establish that the Intoxilyzer 5000 used to test her breath was operating properly in that the attempted foundation was based on hearsay which violated her constitutional rights to confront witnesses.

No certificate of compliance in this regard, in the form provided by OCGA § 40-6-392 (f) in accordance with subsection (a) (1), was introduced. “ ‘Certificates’ are not the exclusive means of laying the foundation to admit alcohol test results.” Bazemore v. State, 225 Ga. App. 741, 745 (2) (484 SE2d 673) (1997) (chemist who operated gas chromatograph established integrity of device). Although by law certificates are self-authenticating and satisfy the requirement of proof that the intoximeter operated properly, proof of this fact may thus also be established by other evidence. Id. at 744. Compare Hobbs v. State, 224 Ga. App. 314 (2) (480 SE2d 330) (1997); Cullen v. State, 223 Ga. App. 356, 357 (2) (477 SE2d 620) (1996); State v. Kampplain, 223 Ga. App. 16 (477 SE2d 143) (1996); and State v. Hunter, 221 Ga. App. 837 (1) (473 SE2d 192) (1996). Although Kampplain left this issue open, supra at 18, Bazemore resolved it.

State Trooper Tackett’s job as area supervisor is to conduct periodic inspections of Intoxilyzer 5000s and to issue certificates pursuant to OCGA § 40-6-392 (f). She did not conduct an inspection of or see the particular machine used for Caldwell, but she was permitted to testify based on certain documents printed by the machine during its most recent inspection by State Trooper Webb, who was unavailable to testify.

The recent decision in Brown v. State, 268 Ga. 76 (485 SE2d 486) (1997), held that a certificate issued pursuant to OCGA § 40-6-392 (f) may be admitted upon proper foundation under the business records exception to the hearsay rule without infringing on a defendant’s rights under the confrontation clauses of the Federal and State constitutions. OCGA § 40-6-392 (f) specifies that the statutorily-worded certificate which documents that the breath-testing instrument has passed inspection “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.” See Brown, supra; Kampplain, supra, 223 Ga. App. at 18-19. That is the starting point of a fact analysis here, as we consider a substitute.

Based on a number of testing printouts produced by the machine during its most recent quarterly inspection, Trooper Tackett gave her opinion that a certificate had been properly issued by Trooper Webb since the machine had all of its parts connected and was in good working order. The printouts are not hearsay but rather the mechanically-generated reports automatically created by the machine. They do not constitute out-of-court statements by any person or “the conclusion of a third party not before the court,” as was the impediment in Miller v. State, 266 Ga. 850, 854 (3) (472 SE2d 74) (1996). Even if they did constitute hearsay, they fell within the business record exception to the hearsay rule, as does the statutory certificate based on them. Brown, supra. Caldwell was not denied any right to cross-examine the machine about the printouts it produced. She did thoroughly cross-examine Trooper Tackett, who interpreted the printouts and described the tests which they reported.

Trooper Tackett described the certification process and testified that the acetone interference detection test on the machine is conducted in the first and third quarter checks each year. The diagnostic test is done each quarter, with the additional mouth alcohol test the second and fourth quarters, and the radio interference test annually. The frequency of all these tests is in accordance with the rules of the Division of Forensic Sciences and the manufacturer’s suggestion. Records are maintained of the inspections and resulting certificates by both the agencies involved and by the inspectors such as Troopers Tackett and Webb.

The inspection conducted by Trooper Webb had been on October 4, during the fourth quarter of the year, so a separate acetone check was not included in the printouts reviewed by Trooper Tackett. She could not testify expressly that an acetone check had been conducted on the machine on another occasion, although her testimony supports the inference that inspection of the Intoxilyzer is an ongoing and cumulative process.

Paragraph (1) (A) of subsection (a) of OCGA § 40-6-392 states that the machine on which the accused’s bodily substance was tested must be one “which was operated with all its electronic and operating components prescribed by its manufacturer properly attached and in good working order.” It further designates the Division of Forensic Sciences of the Georgia Bureau of Investigation as the agency which “shall approve satisfactory techniques or methods ... 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. . . .”

Caldwell urges that the intoximeter test results, showing that when tested soon after driving she registered .139 and .121, were inadmissible because the trooper who testified about the testing of the machine did not know whether the acetone check had ever been conducted on the machine. Caldwell would change the statutory law by requiring more evidence than is required by the legislature to ensure intoximeter test results are valid.

Had there been any acetone interference, the filters would detect that and the printout would show that the “internal standards” part of the machine’s diagnostic test “failed.” The printout showed that the machine “passed” the internal standards. The twice yearly separate acetone interference detection test is a check on acetone in addition to the diagnostic test’s detection of acetone or other interfering substances. Consequently, the witness was able to testify, as she did, that the machine was operating with all of its components attached and in good working order, as required by OCGA § 40-6-392 (a) (1) (A). It was not necessary for her to know or to testify that the secondary acetone test had been satisfactorily conducted the previous quarter.

Thus, there was not a missing element in the foundation needed for admission of the results of the test taken by Caldwell. Were it otherwise, then all four quarterly certificates for a year, ending with the certificate showing machine testing close in time to the accused’s test, would be a prerequisite for admission of the accused’s test results. This would be so because only all four sequential certificates would show that not only the diagnostic test but also the acetone test, the mouth alcohol test, and the radio test were conducted in that year.

The law does not require that. It provides that “the certificate . . . shall satisfy the pertinent requirements of paragraph (1) of subsection (a) of this Code section.” OCGA § 40-6-392 (f). It refers expressly to the certificate that is prepared and signed “each time” the instrument is inspected. Id. There is no requirement that, in addition, the State prove that the periodic tests not done in connection with the certification at issue were also done at some time. The law leaves the techniques and methods for machine testing up to the Division of Forensic Sciences. The Division does not require a separate acetone interference test, or for that matter a separate mouth alcohol or radio interference test, to be conducted “[e]ach time an approved breath-testing instrument is inspected.” OCGA § 40-6-392 (f). Yet a single certificate, standing on its own, is sufficient to assure the machine was operating properly. That being the case, the testimony establishing in detail the same thing the certificate would have summarily shown, in shorthand fashion, is not deficient.

The evidence was properly admitted, the State proved that the machine was operating in accordance with OCGA § 40-6-392 (a) (1) (A) when Caldwell was tested, and it further proved that Caldwell “did have an alcohol concentration of 0.10 grams or more at a time within three hours after driving. . . .” The judgment of conviction is affirmed.

Judgment affirmed.

Andrews, C. J., Birdsong, P. J., Smith and Ruffin, JJ, concur. McMurray, P. J., and Eldridge, J., dissent.