Reliability of Breathalyzer

Georgia DUI Law Brief on DUI Breath Testing Machines  by

Allen M. Trapp, Jr.
P.O. Box 2206     Georgia Bar No. 715535
Carrollton, Ga. 30112
(770) 830-8560

www.topgn-lawyer.com

This brief is in the Georgia Court of Appeals right now.  It challenges the admissibility of Georgia breath tests on three grounds:
1) All of the parts prescribed by the manufacturer are not attached and in good working order.
2) The DUI test was not conducted in accordance with approved methods because records of all the checks performed
when the machine was inspected were not maintained as required by the "approved methods."
3) An Arizona v. Youngblood violation.  The longer you blow, the higher you go means that Georgia is concealing potentially
exculpatory evidence. 

IN THE GEORGIA COURT OF APPEALS

DAVID MARK SMITH,   
 Petitioner   
     
 vs.     Appeal No.__________________
     
STATE OF GEORGIA,  
 Respondent   

________________________________________________________

         APPLICATION FOR LEAVE TO APPEAL AN INTERLOCUTORY ORDER DENYING PETITIONER'S MOTION IN LIMINE
________________________________________________________

Allen M. Trapp, Jr.
    Attorney for Petitioner
   State Bar No. 715535

P.O. Box 2206
Carrollton, Ga. 30112
(770) 830-8560

IN THE GEORGIA COURT OF APPEALS

DAVID MARK SMITH  
 Petitioner   
     
 vs.     Appeal No.__________________
     
STATE OF GEORGIA,  
 Respondent  

APPLICATION FOR LEAVE TO APPEAL AN INTERLOCUTORY
ORDER DENYING PETITIONER'S MOTION IN LIMINE

 COMES NOW the Petitioner, David Mark Smith, by counsel, and pursuant to O.C.G.A. § 5-6-34(b) and Rule 30 of the Rules of the Georgia Court of Appeals, respectfully petitions this Court for leave to file an Interlocutory Appeal from the May 11, 2005, order of the State Court of Carroll County, issued by the Honorable Robert H. Sullivan, denying the Petitioner's Motion in Limine. (Exhibit "A").
 The trial court, on May 16, 2005, pursuant to O.C.G.A. §§ 5-6-34(b) and 5-7-2, certified that its order is of such importance that immediate review by this Court is appropriate.  This application for appellate review is being filed within ten (10) days of the trial court's order granting a certificate of immediate review. (Exhibit "B").
JURISDICTION
 The Court of Appeals, rather than the Supreme Court of Georgia, has jurisdiction of this appeal on the grounds that the subject matter of the case complained of is not exclusively reserved to the appellate jurisdiction of the Supreme Court of Georgia by the Constitution or laws of the State of Georgia.
1.

STATEMENT OF FACTS
On September 4, 2004, Petitioner was arrested in a field adjoining his home in rural Carroll County and charged with hunting under the influence in violation of O.C.G.A. 27-3-7, which proscribes hunting while a person has an alcohol concentration of .10 grams or more or hunting under the influence of alcohol to the extent that it is less safe for the person to hunt.
Following the arrest, the Department of Natural Resources officer then read the Implied Consent Notice to the Petitioner, and the Petitioner agreed to submit to a breath test, which was administered on an Intoxilyzer 5000EN at the Carroll County Sheriff's Department. 
On September 27, 2004, the Petitioner filed various motions, including a Motion In Limine, which was amended on November 9, 2004.  A hearing was held in this case on November 11, 2004, in the State Court of Carroll County  before by the Honorable Robert H. Sullivan.  A written order denying the Petitioner's Motion was entered on May 11, 2005.  Pursuant to O.C.G.A. §§ 5-6-34(b) and 5-7-2, Judge Sullivan certified that the Order is of such importance to the case that immediate review should be had.
BASIS FOR GRANTING INTERLOCUTORY APPEAL
Petitioner requests that this matter be accepted for an Interlocutory Appeal because the outcome should be totally dispositive of the case, and, in view of the fact that these issues with the record developed in this case have never been addressed by the Court of Appeals, the establishment of precedent is desirable.  Furthermore, by seeking
  judicial review, both the Petitioner and the State may be able to avoid the expense and complications of a trial. 
The issues addressed in the Motion in Limine may be summarized as:                      (1) Whether the Intoxilyzer 5000EN in question had all of its electronic and operating components prescribed by its manufacturer properly attached and in good working order.  (2) Whether the test was conducted in accordance with methods approved by the Division of Forensic Sciences, specifically whether the Division of Forensic Science's inspection protocol complied with the "approved methods" set for in the regulation adopted by the Georgia Bureau of Investigation.  (3) Whether the test was conducted in such a manner as to deny the Defendant the due process of law because the GBI's Division of Forensic Sciences methods and procedures facilitate if not induce the effective concealment of exculpatory evidence, and fail to implement any safeguard to ensure the integrity and accuracy of the forensic analysis of breath samples.
 ISSUE ONE: Whether the Intoxilyzer 5000EN in question had all of its electronic and operating components prescribed by its manufacturer properly attached and in good working order.
O.C.G.A. 27-3-7 (d)(1)  requires that all of the electronic and operating components prescribed by a breath testing machine's manufacturer be properly attached to the testing device and be in good working order and that the test must be performed in accordance with methods approved by the Division of Forensic Sciences.  Otherwise, the
test results are inadmissible.  It should also be noted that the admissibility of breath test results is controlled exclusively by the statute.  See  Brannan v. State, 261 Ga. 128,          129 (1991).  We now ask the Court to note that the former requirement - that all of the electronic and operating components prescribed by a breath testing machine's manufacturer be properly attached to the testing device and be in good working order - was added to the statute in 1995 after it was discovered that the Division of Forensic Sciences had surreptitiously without public notice or disclosure to the Courts disengaged the Taguchi cell, which served as an interferent detector, on the Intoximeter 3000.  Cases discussing this development include State v. Kampplain, 223 Ga. App. 16 (1996) and  State v. Hunter, 221 Ga. App. 837 (1996).
The printed breath test result in this case did not reveal the Petitioner's breath volume.  Dr. Jorey Krawczyn, an expert on the Intoxilyzer 5000, testified that a component for measuring breath volume is prescribed by the manufacturer of the Intoxilyzer 5000EN.  Tellingly, when the prosecutor questioned Phil Lively, a representative of CMI, Inc., the manufacturer of the Intoxilyzer 5000EN, he never asked Mr. Lively a single question about this component.  There is probably a good reason he did not. Silence on the issue says more than could any words to confirm that breath volume measurement is a factory-installed component designed by the manufacturer.          Defendant's Exhibit Number 4, a sales brochure for the Intoxilyzer 5000EN, outlines the features of the Intoxilyzer 5000EN on the left side of the page.  The brochure also includes a list of options on the right side of the page.  The capability for measuring breath volume is included in the list of   features - not the list of options - leading to the
conclusion that the component for measuring breath volume is prescribed by the manufacturer.
Dwight Redwine, the area supervisor who conducts periodic inspections on the Intoxilyzers,  testified that he installed the first Intoxilyzer 5000EN that came to Georgia.   He also admitted that it did have a device for measuring breath volume and printing that volume on the test strip.  It should be emphasized that the statute requires that the device have all electronic and operating components prescribed by its manufacturer, not an individual at the Division of Forensic Sciences, attached and in good working order.  Clearly, the breath volume measuring device was prescribed by the manufacturer if it was on the units initially shipped to Georgia.  Curiously, the GBI responded to the Petitioner's subpoena for records relating to the disconnection or disengagement of this device by stating they have none.         
In any event, the evidence shows that there was a breath volume measurement          component prescribed by the manufacturer, and for reasons it does not care to reveal, the Division of Forensic Sciences has caused that device to be disconnected, disengaged, or disabled.  Therefore, the introduction into evidence of any breath test result generated by such an instrument is prohibited.  State v. Kampplain, 223 Ga. App. 16 (1996); State v. Hunter, 221 Ga. App. 837 (1996). ISSUE TWO: Whether the test was conducted in accordance with methods approved by the Division of Forensic Sciences, specifically whether the Division of Forensic Science's inspection protocol complied with the "approved methods" set  forth in the regulation 5. 
The GBI's Division of Forensic Sciences, which operates the Crime Lab, including Implied Consent/Alcohol Testing states:
 The analyses employ the most recent scientific technologies and are performed on highly sophisticated instrumentation.
http://www.ganet.org/gbi/fordiv.html  (GBI website)
The term "forensic" is defined as follows:

Latin forensis public, forensic, from forum forum
1: belonging to, used in, or suitable to the courts or to public discussion and debate
2: relating to or dealing with the application of scientific knowledge (as of medicine or linguistics) to legal problems
Example: forensic pathology
Example: forensic experts
Merriam-Webster's Legal Dictionary (1996)

Thus, "forensic science" refers to that scientific study and evidence suitable to the criminal justice system, which demands that highest quality of evidence to establish as true the essential elements founded on facts and scientific opinions to achieve justice beyond a reasonable doubt.  A machine is only as good as the operator behind it, and forensically acceptable procedural safeguards are essential to confirm the opinion extracted from the testing machine is forensically reliable and accurate.  Procedural safeguards are all that exist to ensure the human operator's ability to know when the testing machine is giving a true and accurate opinion in its chemical analysis and when it is not.
Ga. Comp. R. & Regs. r. 92-3-.06(12)(a) sets forth the "methods approved by  Division of Forensic Sciences for conducting an evidential breath alcohol analysis."    Subparagraph (3) requires the testing instrument to be checked periodically for calibration  and operation, in accordance with Rule 92-3-.06(8)(a).  That rule in turn requires that each in  weight to be given the test results and not to their admissibility.  In so holding, the Court relied on Ga. Comp. R. & Regs. r. 92-3-.06(12)(b), which provides that, "Administrative,    procedural, and/or clerical steps performed in conducting a test shall not constitute a part of the approved method of analysis."  This case does not concern itself with that paragraph of the "approved methods" or the operator's manual.  Rather, in this case we are concerned with Rule 92-3-.06 (12)(a), which says that the methods approved for conducting an evidential breath test shall consist of a handful of requirements, including the command in subparagraph (3) that the testing instrument shall have been checked periodically for calibration and operation, "...in accordance with Rule 92-3-.06 (8)(a)."  Therefore, compliance with Rule 92-3-.06 (8)(a) is an integral part of the approved methods.
That rule requires each breath testing instrument to be checked periodically for calibration and operation, which adds nothing to Rule 92-3-.06 (12)(a)(3), but also requires that records of the results of all such checks be maintained.  Therefore, the maintenance of records of all results of the periodic inspections is a required part of the "methods approved" by the Division of Forensic Sciences, Trooper Redwine's mistaken testimony to the contrary notwithstanding.  Clearly, Trooper Redwine never maintains this particular record.  Clearly, the applicable regulation requires it, and failure to comply with this regulation means that the breath test result in this case fails to satisfy the "approved methods" requirement of O.C.G.A. 27-3-7 (d)(1).  ISSUE THREE: Whether the test was conducted in such a manner as to deny the Defendant the due process of law because the GBI's Division of Forensic Sciences
  methods and procedures facilitate if not induce the effective concealment of exculpatory evidence, and fail to implement any safeguard to ensure the integrity and accuracy of the forensic analysis of breath samples.
During the hearing on Petitioner's Motion in Limine the trial court heard from Dr.    Jorey Krawczyn, who the trial court recognized as an expert on the Intoxilyzer 5000.  Dr. Krawczyn explained to the Court that from the time an adequate breath sample is  obtained until a person stops blowing, he would expect the breath alcohol concentration to increase.  He also recounted that he had observed increases of seventy (70) to eighty (80) percent in breath alcohol readings generated by the machine between the time when an adequate breath sample was first obtained and the time when an individual stopped blowing into it.    What should concern this Court is that either result would be admissible, but a citizen would not even be aware of the possible existence of a lower BrAC reading when an adequate sample is obtained. The trial court also heard from Phil Lively, a high ranking representative of CMI, Inc., the manufacturer of the Intoxilyzer 5000.  Although he attempted to impeach Dr. Krawczyn's testimony that there were three key variables in breath testing by testifying that there are four "criteria", he quickly contradicted himself by stating there were only three.  During direct examination he agreed with Dr. Krawczyn that "The longer you blow, the higher you go."  However, he then claimed that, "You're not going to blow higher than you are." 
That is an interesting claim.  If he was referring to blood alcohol concentration, which would in all likelihood be the "common sense" interpretation of his statement, he
  compromised his position later when he conceded that the Intoxilyzer does not measure blood alcohol concentration.  It measures only breath alcohol concentration.  He also conceded that if a person's blood/breath partition coefficient is lower than 2100:1, the Intoxilyzer 5000 may very well report a breath alcohol concentration higher than the actual  blood alcohol concentration. If his assertion meant that the breath alcohol concentration reported cannot be higher than the actual breath alcohol concentration, the statement is meaningless.  First, although he disagreed with the study regarding breath temperature published in the newsletter of the  International Association for Chemical Testing in 1998, he then conceded that the Draeger breath testing instrument used in Alabama adjusts for breath temperature.  He also stated that the printed result comes from the end of the breath sample, and that the average, which will always be lower than the final result, is not calculated.  Finally, he admitted that it is within the officer's discretion to tell a person when to stop blowing, and even went so far as to say that determining the length of the blow is the officer's option.   In other words, an officer can clearly manipulate a test result by encouraging a person to continue blowing long after an adequate sample has been obtained. 
Apparently the sample chamber is 81 cubic centimeters, although in excess of 1.1 liters of breath must be provided in order for a breath alcohol concentration to be calculated.  The remainder of the breath sample provided  by a suspect is vented out the back of the machine.  This means that  even if a minimally adequate sample is obtained, at least 1019 cubic centimeters out of 1100 are no longer in the sample chamber when the
  final calculation is made.  In other words, at least 92.6 percent of the breath sample has been discarded.  As will be explained  shortly, that is important. 
O.C.G.A. 27-3-7 (b)(4) proscribes hunting with an unlawful alcohol concentration.  Alcohol concentration is defined in the alternative as "...grams of alcohol per 100  milliliters of blood or grams of alcohol per 210 liters of breath."  O.C.G.A. 40-1-1 (1).  Therefore, this Court must inquire what is meant by "breath."  The most common definition is "air taken into the lungs and then let out during respiration."  Air becomes breath when it goes into the lungs AND is exhaled from the lungs.  The only air that fulfills that criteria is the air that is exhaled from the mouth or nose.  Any air within the lungs is not breath.  Only that which is  exhaled can be considered as breath.
Since the specific portion of the breath that is sought to determine alcohol concentration is not defined, we can only surmise that the average of the breath is meant.  The average of the breath would include some initial breath with lower ETOH and some of the later breath with a higher concentration.  As conceded by Phil Lively, the average of the breath alcohol concentrations will be a value that is lower than that recorded by the Intoxilyzer. 
O.C.G.A. 40-6-392(a)(1)(B) provides, in part, "An adequate breath sample shall mean a breath sample sufficient to cause the breath-testing instrument to produce a printed alcohol concentration analysis."  The trial court heard uncontradicted testimony to the effect that once a person has provided an adequate breath sample, the LED display on the Intoxilyzer will show a "0" to the left of a decimal point followed by a three-digit reading to the right of the decimal point as a breath alcohol result.  In addition, it came to the
  court's attention that the breath alcohol concentration reported by the machine will continue to rise the longer an individual blows into it.  By deliberately disregarding, discarding and concealing exculpatory evidence, the State is violating the Defendant's rights to due process of law.  See Kyles v. Whitley, 514 U.S. 419 (1995).  Since police officers and the Division of Forensic Sciences are aware that a test result can be  generated and printed once an adequate sample is obtained, the Petitioner's test result should have been suppressed by the trial court because the failure to preserve this potentially useful evidence is attributable to bad faith on the part of the police.  Arizona v. Youngblood, 488 U.S. 51 (1988).
It  is clear that once an adequate breath sample has been obtained, the machine can print a result.  However, the longer someone blows, the higher the BrAC reported and printed.  Clearly, a lower result that could have been printed once an adequate sample was obtained can be exculpatory.  Georgia's courts have, of course, followed Youngblood and held that the prosecution may be penalized if it loses or destroys evidence that could potentially have been helpful to the defense if the defense shows that the evidence was material and that the State acted in bad faith in failing to preserve it.  E.g., Penny v. State, 248 Ga. App. 772 (2001); Giraudy v. State, 252 Ga. App. 219 (2001).  Evidence of a lower BrAC is more than "potentially useful"; it is hard to imagine more material evidence in a  hunting under the influence prosecution, and bad faith is self-evident. 
Shielding from view the LED display during the blowing so it cannot be seen by the test subject and not instructing a citizen to stop blowing after an adequate sample is obtained while knowing full well that the result will continue to climb the longer the
12.  individual blows constitutes concealment and manipulation/bad faith in the clearest way.  The undersigned concedes that destruction of evidence does not warrant the suppression of test results absent any evidence that the destroyed evidence would have been exculpatory.  Shoemake v. State, 266 Ga. App. 342 (2004).  However, in this case we have exactly what was lacking in Shoemake - unchallenged evidence that a lower BrAC would have been reported had the initial adequate sample been analyzed.
There is a tremendous potential for manipulation of breath test results, and the state is in control of that manipulation.  The problem could be easily eliminated if the machine was programmed to print out the breath alcohol concentration instantaneously and then shut down when the machine gives the signal that an adequate breath sample has been obtained.  There is nothing in our statutes that either requires a citizen to provide nor authorizes the state to obtain more than an adequate sample.
Alternatively, the Division of Forensic Sciences could prevent this ability to manipulate the result by mandating the testing procedure of instructing the test operator to instruct the subject to stop blowing as soon as an adequate sample has been registered.  Even a testing procedure that mandates the test operator give no instruction as to how long to blow, but merely instructs the subject to blow until the leading zero appears would be sufficient to avoid manipulation of the length of blow by the officer.  However, the methods approved for administration of a breath test in Georgia are conspicuously lacking in any such directive.
An Intoxilyzer test is analogous to a situation in which investigating officers do not take statements from witnesses to a crime whose preliminary indication of what they
13.  observed seems to favor the defendant.  By not taking the statement, the police avoid the rigid Brady requirement that inculpatory evidence be turned over to the defense.  The state only takes the statements of witnesses whose preliminary indication is that what they observed favors the state.  Then, of course, the state is willing to disclose those to defendant and his counsel.
State v. Meza, 203 Ariz. 50, 50 P.3d 407 (Ariz. App. 2002), stands for the proposition that when a state crime lab acted in bad faith when it concealed a breath testing device's  failed calibration checks from the Alcohol Data Acquisition Management System and the Defendant, the breath test result is inadmissible because the State has a duty to disclose information that has a tendency to mitigate or negate a Defendant's guilt.  Since information regarding a breath alcohol concentration that was lower than that reported will most assuredly have a tendency to mitigate or negate an individual's guilt, the proper remedy is the exclusion of the police breath test result in this case. 

14.

   
CONCLUSION
 WHEREAS, the breath testing device on which this Petitioner took a breath test;  did not have all the electronic and operating components prescribed by its manufacturer attached and in good working order; and,
 WHEREAS, the breath test was not conducted in accordance with methods approved by the Division of Forensic Sciences; and
 WHEREAS, the State has engaged in a pattern of concealing exculpatory evidence, specifically that a lower breath alcohol concentration is reported and could be printed when the Intoxilyzer 5000 initially obtains an adequate breath sample;
 THEREFORE, the Petitioner requests that this Court grant his Application for an Interlocutory Appeal.  The resolution of these issues should result in the disposition of the case without the necessity of trial, and the establishment of precedent is not only desirable, but crucial. 

Respectfully submitted this _______ day of _______________________, 2005.

 ____________________________
 Allen M. Trapp, Jr.
 Attorney For Petitioner
 State Bar No. 715535

P.O. Box 2206
Carrollton, Ga. 30112
(770) 830-8560
IN THE GEORGIA COURT OF APPEALS

DAVID MARK SMITH ,  
 Petitioner   
     
 vs.     Appeal No.__________________
     
STATE OF GEORGIA,  
 Respondent  

CERTIFICATE OF SERVICE

 I hereby certify that I have this day  served by hand delivery a copy of the foregoing
Application for Leave to Appeal an Interlocutory Order Denying Petitioner's Motion in Limine on the Solicitor  of the State Court of Carroll County or his assistant  at Room 211, Carroll County Courthouse, Carrollton, Ga. 30117.
      This the _______________ day of ______________________, 2005.
  

 _____________________________
      Allen M. Trapp, Jr.
      Attorney For Petitioner
      State Bar No. 715535
P.O. Box 2206
Carrollton, Ga. 30112
(770) 830-8560

Georgia DUI Law Brief on DUI Breath Testing Machines  by

Allen M. Trapp, Jr.
P.O. Box 2206     Georgia Bar No. 715535
Carrollton, Ga. 30112
(770) 830-8560

www.topgn-lawyer.com

This brief is in the Georgia Court of Appeals right now.  It challenges the admissibility of Georgia breath tests on three grounds:
1) All of the parts prescribed by the manufacturer are not attached and in good working order.
2) The DUI test was not conducted in accordance with approved methods because records of all the checks performed
when the machine was inspected were not maintained as required by the "approved methods."
3) An Arizona v. Youngblood violation.  The longer you blow, the higher you go means that Georgia is concealing potentially
exculpatory evidence. 

IN THE GEORGIA COURT OF APPEALS

DAVID MARK SMITH,   
 Petitioner   
     
 vs.     Appeal No.__________________
     
STATE OF GEORGIA,  
 Respondent   

________________________________________________________

         APPLICATION FOR LEAVE TO APPEAL AN INTERLOCUTORY ORDER DENYING PETITIONER'S MOTION IN LIMINE
________________________________________________________

Allen M. Trapp, Jr.
    Attorney for Petitioner
   State Bar No. 715535

P.O. Box 2206
Carrollton, Ga. 30112
(770) 830-8560

IN THE GEORGIA COURT OF APPEALS

DAVID MARK SMITH  
 Petitioner   
     
 vs.     Appeal No.__________________
     
STATE OF GEORGIA,  
 Respondent  

APPLICATION FOR LEAVE TO APPEAL AN INTERLOCUTORY
ORDER DENYING PETITIONER'S MOTION IN LIMINE

 COMES NOW the Petitioner, David Mark Smith, by counsel, and pursuant to O.C.G.A. § 5-6-34(b) and Rule 30 of the Rules of the Georgia Court of Appeals, respectfully petitions this Court for leave to file an Interlocutory Appeal from the May 11, 2005, order of the State Court of Carroll County, issued by the Honorable Robert H. Sullivan, denying the Petitioner's Motion in Limine. (Exhibit "A").
 The trial court, on May 16, 2005, pursuant to O.C.G.A. §§ 5-6-34(b) and 5-7-2, certified that its order is of such importance that immediate review by this Court is appropriate.  This application for appellate review is being filed within ten (10) days of the trial court's order granting a certificate of immediate review. (Exhibit "B").
JURISDICTION
 The Court of Appeals, rather than the Supreme Court of Georgia, has jurisdiction of this appeal on the grounds that the subject matter of the case complained of is not exclusively reserved to the appellate jurisdiction of the Supreme Court of Georgia by the Constitution or laws of the State of Georgia.
1.

STATEMENT OF FACTS
On September 4, 2004, Petitioner was arrested in a field adjoining his home in rural Carroll County and charged with hunting under the influence in violation of O.C.G.A. 27-3-7, which proscribes hunting while a person has an alcohol concentration of .10 grams or more or hunting under the influence of alcohol to the extent that it is less safe for the person to hunt.
Following the arrest, the Department of Natural Resources officer then read the Implied Consent Notice to the Petitioner, and the Petitioner agreed to submit to a breath test, which was administered on an Intoxilyzer 5000EN at the Carroll County Sheriff's Department. 
On September 27, 2004, the Petitioner filed various motions, including a Motion In Limine, which was amended on November 9, 2004.  A hearing was held in this case on November 11, 2004, in the State Court of Carroll County  before by the Honorable Robert H. Sullivan.  A written order denying the Petitioner's Motion was entered on May 11, 2005.  Pursuant to O.C.G.A. §§ 5-6-34(b) and 5-7-2, Judge Sullivan certified that the Order is of such importance to the case that immediate review should be had.
BASIS FOR GRANTING INTERLOCUTORY APPEAL
Petitioner requests that this matter be accepted for an Interlocutory Appeal because the outcome should be totally dispositive of the case, and, in view of the fact that these issues with the record developed in this case have never been addressed by the Court of Appeals, the establishment of precedent is desirable.  Furthermore, by seeking
  judicial review, both the Petitioner and the State may be able to avoid the expense and complications of a trial. 
The issues addressed in the Motion in Limine may be summarized as:                      (1) Whether the Intoxilyzer 5000EN in question had all of its electronic and operating components prescribed by its manufacturer properly attached and in good working order.  (2) Whether the test was conducted in accordance with methods approved by the Division of Forensic Sciences, specifically whether the Division of Forensic Science's inspection protocol complied with the "approved methods" set for in the regulation adopted by the Georgia Bureau of Investigation.  (3) Whether the test was conducted in such a manner as to deny the Defendant the due process of law because the GBI's Division of Forensic Sciences methods and procedures facilitate if not induce the effective concealment of exculpatory evidence, and fail to implement any safeguard to ensure the integrity and accuracy of the forensic analysis of breath samples.
 ISSUE ONE: Whether the Intoxilyzer 5000EN in question had all of its electronic and operating components prescribed by its manufacturer properly attached and in good working order.
O.C.G.A. 27-3-7 (d)(1)  requires that all of the electronic and operating components prescribed by a breath testing machine's manufacturer be properly attached to the testing device and be in good working order and that the test must be performed in accordance with methods approved by the Division of Forensic Sciences.  Otherwise, the
test results are inadmissible.  It should also be noted that the admissibility of breath test results is controlled exclusively by the statute.  See  Brannan v. State, 261 Ga. 128,          129 (1991).  We now ask the Court to note that the former requirement - that all of the electronic and operating components prescribed by a breath testing machine's manufacturer be properly attached to the testing device and be in good working order - was added to the statute in 1995 after it was discovered that the Division of Forensic Sciences had surreptitiously without public notice or disclosure to the Courts disengaged the Taguchi cell, which served as an interferent detector, on the Intoximeter 3000.  Cases discussing this development include State v. Kampplain, 223 Ga. App. 16 (1996) and  State v. Hunter, 221 Ga. App. 837 (1996).
The printed breath test result in this case did not reveal the Petitioner's breath volume.  Dr. Jorey Krawczyn, an expert on the Intoxilyzer 5000, testified that a component for measuring breath volume is prescribed by the manufacturer of the Intoxilyzer 5000EN.  Tellingly, when the prosecutor questioned Phil Lively, a representative of CMI, Inc., the manufacturer of the Intoxilyzer 5000EN, he never asked Mr. Lively a single question about this component.  There is probably a good reason he did not. Silence on the issue says more than could any words to confirm that breath volume measurement is a factory-installed component designed by the manufacturer.          Defendant's Exhibit Number 4, a sales brochure for the Intoxilyzer 5000EN, outlines the features of the Intoxilyzer 5000EN on the left side of the page.  The brochure also includes a list of options on the right side of the page.  The capability for measuring breath volume is included in the list of   features - not the list of options - leading to the
conclusion that the component for measuring breath volume is prescribed by the manufacturer.
Dwight Redwine, the area supervisor who conducts periodic inspections on the Intoxilyzers,  testified that he installed the first Intoxilyzer 5000EN that came to Georgia.   He also admitted that it did have a device for measuring breath volume and printing that volume on the test strip.  It should be emphasized that the statute requires that the device have all electronic and operating components prescribed by its manufacturer, not an individual at the Division of Forensic Sciences, attached and in good working order.  Clearly, the breath volume measuring device was prescribed by the manufacturer if it was on the units initially shipped to Georgia.  Curiously, the GBI responded to the Petitioner's subpoena for records relating to the disconnection or disengagement of this device by stating they have none.         
In any event, the evidence shows that there was a breath volume measurement          component prescribed by the manufacturer, and for reasons it does not care to reveal, the Division of Forensic Sciences has caused that device to be disconnected, disengaged, or disabled.  Therefore, the introduction into evidence of any breath test result generated by such an instrument is prohibited.  State v. Kampplain, 223 Ga. App. 16 (1996); State v. Hunter, 221 Ga. App. 837 (1996). ISSUE TWO: Whether the test was conducted in accordance with methods approved by the Division of Forensic Sciences, specifically whether the Division of Forensic Science's inspection protocol complied with the "approved methods" set  forth in the regulation 5. 
The GBI's Division of Forensic Sciences, which operates the Crime Lab, including Implied Consent/Alcohol Testing states:
 The analyses employ the most recent scientific technologies and are performed on highly sophisticated instrumentation.
http://www.ganet.org/gbi/fordiv.html  (GBI website)
The term "forensic" is defined as follows:

Latin forensis public, forensic, from forum forum
1: belonging to, used in, or suitable to the courts or to public discussion and debate
2: relating to or dealing with the application of scientific knowledge (as of medicine or linguistics) to legal problems
Example: forensic pathology
Example: forensic experts
Merriam-Webster's Legal Dictionary (1996)

Thus, "forensic science" refers to that scientific study and evidence suitable to the criminal justice system, which demands that highest quality of evidence to establish as true the essential elements founded on facts and scientific opinions to achieve justice beyond a reasonable doubt.  A machine is only as good as the operator behind it, and forensically acceptable procedural safeguards are essential to confirm the opinion extracted from the testing machine is forensically reliable and accurate.  Procedural safeguards are all that exist to ensure the human operator's ability to know when the testing machine is giving a true and accurate opinion in its chemical analysis and when it is not.
Ga. Comp. R. & Regs. r. 92-3-.06(12)(a) sets forth the "methods approved by  Division of Forensic Sciences for conducting an evidential breath alcohol analysis."    Subparagraph (3) requires the testing instrument to be checked periodically for calibration  and operation, in accordance with Rule 92-3-.06(8)(a).  That rule in turn requires that each in  weight to be given the test results and not to their admissibility.  In so holding, the Court relied on Ga. Comp. R. & Regs. r. 92-3-.06(12)(b), which provides that, "Administrative,    procedural, and/or clerical steps performed in conducting a test shall not constitute a part of the approved method of analysis."  This case does not concern itself with that paragraph of the "approved methods" or the operator's manual.  Rather, in this case we are concerned with Rule 92-3-.06 (12)(a), which says that the methods approved for conducting an evidential breath test shall consist of a handful of requirements, including the command in subparagraph (3) that the testing instrument shall have been checked periodically for calibration and operation, "...in accordance with Rule 92-3-.06 (8)(a)."  Therefore, compliance with Rule 92-3-.06 (8)(a) is an integral part of the approved methods.
That rule requires each breath testing instrument to be checked periodically for calibration and operation, which adds nothing to Rule 92-3-.06 (12)(a)(3), but also requires that records of the results of all such checks be maintained.  Therefore, the maintenance of records of all results of the periodic inspections is a required part of the "methods approved" by the Division of Forensic Sciences, Trooper Redwine's mistaken testimony to the contrary notwithstanding.  Clearly, Trooper Redwine never maintains this particular record.  Clearly, the applicable regulation requires it, and failure to comply with this regulation means that the breath test result in this case fails to satisfy the "approved methods" requirement of O.C.G.A. 27-3-7 (d)(1).  ISSUE THREE: Whether the test was conducted in such a manner as to deny the Defendant the due process of law because the GBI's Division of Forensic Sciences
  methods and procedures facilitate if not induce the effective concealment of exculpatory evidence, and fail to implement any safeguard to ensure the integrity and accuracy of the forensic analysis of breath samples.
During the hearing on Petitioner's Motion in Limine the trial court heard from Dr.    Jorey Krawczyn, who the trial court recognized as an expert on the Intoxilyzer 5000.  Dr. Krawczyn explained to the Court that from the time an adequate breath sample is  obtained until a person stops blowing, he would expect the breath alcohol concentration to increase.  He also recounted that he had observed increases of seventy (70) to eighty (80) percent in breath alcohol readings generated by the machine between the time when an adequate breath sample was first obtained and the time when an individual stopped blowing into it.    What should concern this Court is that either result would be admissible, but a citizen would not even be aware of the possible existence of a lower BrAC reading when an adequate sample is obtained. The trial court also heard from Phil Lively, a high ranking representative of CMI, Inc., the manufacturer of the Intoxilyzer 5000.  Although he attempted to impeach Dr. Krawczyn's testimony that there were three key variables in breath testing by testifying that there are four "criteria", he quickly contradicted himself by stating there were only three.  During direct examination he agreed with Dr. Krawczyn that "The longer you blow, the higher you go."  However, he then claimed that, "You're not going to blow higher than you are." 
That is an interesting claim.  If he was referring to blood alcohol concentration, which would in all likelihood be the "common sense" interpretation of his statement, he
  compromised his position later when he conceded that the Intoxilyzer does not measure blood alcohol concentration.  It measures only breath alcohol concentration.  He also conceded that if a person's blood/breath partition coefficient is lower than 2100:1, the Intoxilyzer 5000 may very well report a breath alcohol concentration higher than the actual  blood alcohol concentration. If his assertion meant that the breath alcohol concentration reported cannot be higher than the actual breath alcohol concentration, the statement is meaningless.  First, although he disagreed with the study regarding breath temperature published in the newsletter of the  International Association for Chemical Testing in 1998, he then conceded that the Draeger breath testing instrument used in Alabama adjusts for breath temperature.  He also stated that the printed result comes from the end of the breath sample, and that the average, which will always be lower than the final result, is not calculated.  Finally, he admitted that it is within the officer's discretion to tell a person when to stop blowing, and even went so far as to say that determining the length of the blow is the officer's option.   In other words, an officer can clearly manipulate a test result by encouraging a person to continue blowing long after an adequate sample has been obtained. 
Apparently the sample chamber is 81 cubic centimeters, although in excess of 1.1 liters of breath must be provided in order for a breath alcohol concentration to be calculated.  The remainder of the breath sample provided  by a suspect is vented out the back of the machine.  This means that  even if a minimally adequate sample is obtained, at least 1019 cubic centimeters out of 1100 are no longer in the sample chamber when the
  final calculation is made.  In other words, at least 92.6 percent of the breath sample has been discarded.  As will be explained  shortly, that is important. 
O.C.G.A. 27-3-7 (b)(4) proscribes hunting with an unlawful alcohol concentration.  Alcohol concentration is defined in the alternative as "...grams of alcohol per 100  milliliters of blood or grams of alcohol per 210 liters of breath."  O.C.G.A. 40-1-1 (1).  Therefore, this Court must inquire what is meant by "breath."  The most common definition is "air taken into the lungs and then let out during respiration."  Air becomes breath when it goes into the lungs AND is exhaled from the lungs.  The only air that fulfills that criteria is the air that is exhaled from the mouth or nose.  Any air within the lungs is not breath.  Only that which is  exhaled can be considered as breath.
Since the specific portion of the breath that is sought to determine alcohol concentration is not defined, we can only surmise that the average of the breath is meant.  The average of the breath would include some initial breath with lower ETOH and some of the later breath with a higher concentration.  As conceded by Phil Lively, the average of the breath alcohol concentrations will be a value that is lower than that recorded by the Intoxilyzer. 
O.C.G.A. 40-6-392(a)(1)(B) provides, in part, "An adequate breath sample shall mean a breath sample sufficient to cause the breath-testing instrument to produce a printed alcohol concentration analysis."  The trial court heard uncontradicted testimony to the effect that once a person has provided an adequate breath sample, the LED display on the Intoxilyzer will show a "0" to the left of a decimal point followed by a three-digit reading to the right of the decimal point as a breath alcohol result.  In addition, it came to the
  court's attention that the breath alcohol concentration reported by the machine will continue to rise the longer an individual blows into it.  By deliberately disregarding, discarding and concealing exculpatory evidence, the State is violating the Defendant's rights to due process of law.  See Kyles v. Whitley, 514 U.S. 419 (1995).  Since police officers and the Division of Forensic Sciences are aware that a test result can be  generated and printed once an adequate sample is obtained, the Petitioner's test result should have been suppressed by the trial court because the failure to preserve this potentially useful evidence is attributable to bad faith on the part of the police.  Arizona v. Youngblood, 488 U.S. 51 (1988).
It  is clear that once an adequate breath sample has been obtained, the machine can print a result.  However, the longer someone blows, the higher the BrAC reported and printed.  Clearly, a lower result that could have been printed once an adequate sample was obtained can be exculpatory.  Georgia's courts have, of course, followed Youngblood and held that the prosecution may be penalized if it loses or destroys evidence that could potentially have been helpful to the defense if the defense shows that the evidence was material and that the State acted in bad faith in failing to preserve it.  E.g., Penny v. State, 248 Ga. App. 772 (2001); Giraudy v. State, 252 Ga. App. 219 (2001).  Evidence of a lower BrAC is more than "potentially useful"; it is hard to imagine more material evidence in a  hunting under the influence prosecution, and bad faith is self-evident. 
Shielding from view the LED display during the blowing so it cannot be seen by the test subject and not instructing a citizen to stop blowing after an adequate sample is obtained while knowing full well that the result will continue to climb the longer the
12.  individual blows constitutes concealment and manipulation/bad faith in the clearest way.  The undersigned concedes that destruction of evidence does not warrant the suppression of test results absent any evidence that the destroyed evidence would have been exculpatory.  Shoemake v. State, 266 Ga. App. 342 (2004).  However, in this case we have exactly what was lacking in Shoemake - unchallenged evidence that a lower BrAC would have been reported had the initial adequate sample been analyzed.
There is a tremendous potential for manipulation of breath test results, and the state is in control of that manipulation.  The problem could be easily eliminated if the machine was programmed to print out the breath alcohol concentration instantaneously and then shut down when the machine gives the signal that an adequate breath sample has been obtained.  There is nothing in our statutes that either requires a citizen to provide nor authorizes the state to obtain more than an adequate sample.
Alternatively, the Division of Forensic Sciences could prevent this ability to manipulate the result by mandating the testing procedure of instructing the test operator to instruct the subject to stop blowing as soon as an adequate sample has been registered.  Even a testing procedure that mandates the test operator give no instruction as to how long to blow, but merely instructs the subject to blow until the leading zero appears would be sufficient to avoid manipulation of the length of blow by the officer.  However, the methods approved for administration of a breath test in Georgia are conspicuously lacking in any such directive.
An Intoxilyzer test is analogous to a situation in which investigating officers do not take statements from witnesses to a crime whose preliminary indication of what they
13.  observed seems to favor the defendant.  By not taking the statement, the police avoid the rigid Brady requirement that inculpatory evidence be turned over to the defense.  The state only takes the statements of witnesses whose preliminary indication is that what they observed favors the state.  Then, of course, the state is willing to disclose those to defendant and his counsel.
State v. Meza, 203 Ariz. 50, 50 P.3d 407 (Ariz. App. 2002), stands for the proposition that when a state crime lab acted in bad faith when it concealed a breath testing device's  failed calibration checks from the Alcohol Data Acquisition Management System and the Defendant, the breath test result is inadmissible because the State has a duty to disclose information that has a tendency to mitigate or negate a Defendant's guilt.  Since information regarding a breath alcohol concentration that was lower than that reported will most assuredly have a tendency to mitigate or negate an individual's guilt, the proper remedy is the exclusion of the police breath test result in this case. 

14.

   
CONCLUSION
 WHEREAS, the breath testing device on which this Petitioner took a breath test;  did not have all the electronic and operating components prescribed by its manufacturer attached and in good working order; and,
 WHEREAS, the breath test was not conducted in accordance with methods approved by the Division of Forensic Sciences; and
 WHEREAS, the State has engaged in a pattern of concealing exculpatory evidence, specifically that a lower breath alcohol concentration is reported and could be printed when the Intoxilyzer 5000 initially obtains an adequate breath sample;
 THEREFORE, the Petitioner requests that this Court grant his Application for an Interlocutory Appeal.  The resolution of these issues should result in the disposition of the case without the necessity of trial, and the establishment of precedent is not only desirable, but crucial. 

Respectfully submitted this _______ day of _______________________, 2005.

 ____________________________
 Allen M. Trapp, Jr.
 Attorney For Petitioner
 State Bar No. 715535

P.O. Box 2206
Carrollton, Ga. 30112
(770) 830-8560
IN THE GEORGIA COURT OF APPEALS

DAVID MARK SMITH ,  
 Petitioner   
     
 vs.     Appeal No.__________________
     
STATE OF GEORGIA,  
 Respondent  

CERTIFICATE OF SERVICE

 I hereby certify that I have this day  served by hand delivery a copy of the foregoing
Application for Leave to Appeal an Interlocutory Order Denying Petitioner's Motion in Limine on the Solicitor  of the State Court of Carroll County or his assistant  at Room 211, Carroll County Courthouse, Carrollton, Ga. 30117.
      This the _______________ day of ______________________, 2005.
  

 _____________________________
      Allen M. Trapp, Jr.
      Attorney For Petitioner
      State Bar No. 715535
P.O. Box 2206
Carrollton, Ga. 30112
(770) 830-8560