Cert. applied for.
DUI. Gwinnett State Court. Before Judge South.
The Hawkins Law Firm, Matthew W. Kilgo, for appellant.
Rosanna M. Szabo, Solicitor-General, Robert W. Stills, Jr., Assistant Solicitor-General, for appellee.
Andrews, Presiding Judge.
Jonathan Aaron Massey was charged by accusation with the offense of driving with an alcohol concentration of 0.08 grams or more in violation of OCGA § 40-6-391 (a) (5). Massey brings this interlocutory appeal from the trial court's denial of his pre-trial request pursuant to OCGA § 40-6-392 (a) (4) for discovery concerning the blood test conducted by the State to determine his blood alcohol concentration. For the following reasons, we affirm.
1. At the time of his arrest for driving under the influence, Massey was given the implied consent notice and refused a State-administered chemical test of his breath requested by the arresting officer. After Massey refused the requested test, the officer immediately obtained a search warrant pursuant to which blood was forcibly taken from Massey. The officer sent Massey's blood to the Georgia Bureau of Investigation, where a forensic toxicologist employed by the Forensic Sciences Division (the State Crime Lab) chemically tested the blood using a gas chromatography instrument. Based on the test results, the toxicologist generated a report finding that the blood had an alcohol concentration of 0.133 grams (plus or minus 0.005 grams) per 100 milliliters. Massey filed a pre-trial discovery request seeking information about the blood test pursuant to the discovery provisions set forth in OCGA § 40-6-392 (a) (4). The trial court denied the discovery request on the basis that OCGA § 40-6-392 (a) (4) expressly limits discovery concerning chemical testing of a person's blood, urine, breath, or other bodily substance to " the person who shall submit to a chemical test or tests at the request of a law enforcement officer." The court concluded that the discovery provisions of subsection (a) (4) did not apply because Massey refused to submit to a breath test requested by the officer at the time of his arrest, and the alcohol concentration test at issue was conducted on blood forcibly taken from Massey pursuant to a search warrant obtained by the officer.
[331 Ga.App. 431] OCGA § 40-6-392 provides in relevant part:
(a) 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) (A) 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 ...