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Lawskills.com Georgia Caselaw
PITTMAN v. THE STATE.
40984.
Driving U. I. Athens City Court. Before Judge Oldham.
HALL, Judge.
1. In a criminal prosecution for driving under the influence of alcohol, evidence of the result of a blood alcohol test generally must be accompanied by evidence identifying the blood analyzed with the person from whom it was taken and showing the chain of custody of the blood from the time it was taken to the time it was analyzed, and by expert testimony showing the probative value of the test result on the question of intoxication.
2. In Georgia where a statute (Code Ann. 68-1625) provides that a person arrested for driving under the influence of intoxicating liquor shall have a right to demand a blood alcohol test, and that given results of the test shall create evidentiary presumptions on the question of the defendant's intoxication, the statute and evidentiary presumptions created thereby are applicable only if the blood test is performed at the request of the defendant in the county of his confinement by a designated specialist as prescribed by the statute.
After being convicted for operating a motor vehicle while under the influence of intoxicating liquors, the defendant assigns error on the judgment overruling his motion for new trial.
The trial court admitted in evidence a document, introduced by the State, reading: "Crime Laboratory, State of Georgia, P. O. Box 1456, Atlanta 1, Georgia.
Report of Blood Alcohol Test.
Subject J. W. Pittman. Case Number 48354.
County: Clark. City. Athens.
Requested by Officer: Dr. Barcenas, Athens Gen. Hospt.
Sgt. Fred Barry--Post #32, GSP. Sealed ----X----
Initialed --------
Date and Time Received: 1-14-64, 8:45 A.M. No. of Vials 1
Received from: By Mail from Dr. James Clay
Received by Earl Gober. Remarks --------------------
Results 0/15% Ethyl Alcohol --------------------
Analyzed by
Earl A. Gober Earl A. Gober, B.A. Toxicologist
Certified by Herman D. Jones
Herman D. Jones, Ph. D.
Director."
Trooper Phillips of the Georgia State Patrol testified that this document was a report received by the State Patrol in response to a request of Trooper Johnson for a blood test from the State Crime Lab.; that they "attached a copy of the ticket"; that he never saw the blood himself; and that the county police took the defendant to a doctor approved by the State to take the blood test. The testimony of Trooper Phillips and County Officer Schmitto was that the defendant after being involved in an accident on January 11, 1964, about 10 p.m., volunteered for a blood test and the State Patrolmen investigating the accident asked Officer Schmitto to take the defendant to the county general hospital for a blood test, and Officer Schmitto was there when the defendant had his blood sample taken and it went off to the Crime Lab.; their procedure was to take the blood and send it to the Crime Lab., which reports back to the investigating authorities--in this case the State Patrol. The report set out verbatim above shows that the State Crime Laboratory received the blood sample on January 14, 1964 at 8:45 a.m.
1. Evidence of chemical analysis for alcoholic content in blood is admissible provided the reliability of the procedures used in obtaining and analyzing the blood is adequately shown. Generally (in the absence of a statute dealing with the evidentiary effect of blood tests; see Division 2, infra) the probative value of such evidence on the question of a person's intoxication must be shown by expert testimony. Macon Busses, Inc. v. Dashiell, 73 Ga. App. 108, 116 (35 SE2d 666); Anno. 21 ALR2d 1216; 77 ALR2d 971.
There was no such expert testimony in this case nor did the evidence establish the identity of the defendant's blood as that analyzed by the chemist who made the report introduced in evidence. It did not show by whom the blood sample was taken, how the container was labeled, by whom or by what means it was transmitted to the laboratory, when and by whom it was received. When a substance analyzed has passed through several hands its custody at all times should be accounted for. The evidence must not leave it to conjecture what has happened to it between the taking and the analysis. Rodgers v. Commonwealth of Virginia, 197 Va. 527 (90 SE2d 257); Anno. 21 ALR2d 1216; Lutz v. City of Richmond, 205 Va. 93 (135 SE2d 156); cf. Natwick v. Moyer, 177 Ore. 486 (163 P2d 936); McGowan v. City of Los Angeles, 100 Cal. App. 2d 386 (223 P2d 862); accord King v. State, 89 Ga. App. 626, 628 (80 SE2d 493); 32 CJS 720-722, Evidence, 588 (2); 22A CJS 528, Criminal Law, 645 (3); Comment, 35 Texas L. Rev. 813, 817.
The State contends that the document was admissible in evidence as a written statement made by a public official. In Georgia records or certificates of facts made by public officials are not admissible in evidence to prove the truth of the facts stated unless there is authority by statute or administrative order to record the facts. Jones v. Cordele Guano Co., 94 Ga. 14, 18 (20 SE 265); Green, The Georgia Law of Evidence, 628, 317; cf. Kay v. United States, 255 F2d 476, 480 (4th Cir. 1958); 5 Wigmore on Evidence 519, 1633; 545, 1639; Anno. 21 ALR2d 1216, 1239.
We do not decide whether all official record of a blood analysis made by statutory direction or authority would have to be accompanied by evidence showing the identity and chain of custody of the blood to make such a record admissible in evidence. We find no statute, however, that authorizes an official of the State Crime Laboratory to make alcohol blood tests; therefore, the exception to the hearsay rule permitting admission in evidence of records of official acts, as applied in Georgia, does not apply to reports of blood alcohol tests made by this State agency. Cf. Ga. L. 1937, pp. 322, 340; as amended Ga. L. 1941, pp. 277, 278 (Code Ann. 92A-302); Ga. L. 1953, p. 602 et seq. as amended, Ga. L. 1960, p. 1009 et seq. (Code Ann. 21-203 et seq).
(The testimony in this case suggests that a blood sample of the defendant was taken and submitted to the State Crime Laboratory for analysis and report in a manner similar to that prescribed in Georgia Laws 1961, pp. 437, 438 (Code Ann. 21-227) for obtaining analysis of blood of a person admitted to a hospital or morgue as a result of a casualty and unable to give his consent to the taking of a sample for analytical purposes).
The report of the blood alcohol test admitted in this case, not being accompanied by evidence identifying the blood sample analyzed with the defendant and showing its chain of custody from the time it was taken to the time it was analyzed, and not being accompanied by expert testimony showing its probative value on the question of the defendant's intoxication, was erroneously admitted in evidence. The trial court erred in overruling the special ground of the motion for new trial excepting to the admission of the document.
The provisions concerning presumptions arising from blood alcohol content substantially follow the Uniform Vehicle Code (National Committee on Uniform Traffic Laws and Ordinances, Uniform Vehicle Code, 1944-1952, Act V, p. 14, 54; Revised 1956, p. 118, 11-902). Paragraphs 4 and 6 and the italicized provision of subsection (b), however, are not contained in the Uniform Code. The Georgia legislature chose to give persons under arrest and in police custody for driving under the influence of intoxicating liquor a right to procure a medical evaluation of the alcohol content of their blood, and undertook to make specialists accessible in each county to perform blood tests for persons demanding them. The legislature apparently intended that the statutory presumptions from the alcohol content of a defendant's blood would not arise except when a defendant had demanded a blood test and one had been made pursuant to the statute by a specialist, designated by the Director of Public Safety available in the county of the defendant's confinement. See Slough and Wilson, Alcohol and the Motorist, 44 Minn. L. Rev. 673, 678; Comment, 35 Texas L. Rev. 813, 820.
The evidence in this case shows that the defendant requested a blood test, but does not show that a test was performed by a designated physician or hospital technician available in the county of the defendant's confinement as contemplated by the statute.
The Georgia statute (Code Ann. 68-1625 (b), supra) provides that a person arrested for driving under the influence of intoxicating liquor shall have a right to demand a blood alcohol test, and that given results of the test shall create evidentiary presumptions on the question of the defendant's intoxication. We hold that the statutory presumptions apply only if the blood test is performed at the request of the defendant in the county of his confinement by a designated specialist as prescribed by the statute. The evidentiary presumptions created by the Georgia statute did not apply in this case. The trial court erred in charging the jury the provisions of subsection (b) creating the presumptions, and in overruling the special ground of the motion for new trial excepting to this charge.
Since the defendant's blood test was not performed in accordance with the statute and the statute was not applicable to any relevant evidence in this case the trial court erred in charging paragraphs 4, 5 and 6 of subsection (b), Code Ann. 68-1625, and in overruling the special ground excepting to this charge. Accord Woods v. State, 102 Ga. App. 229, 230 (115 SE2d 595).
In what we have said above it is implicit that, if a blood alcohol test were performed by a specialist of the State Crime Laboratory or by another specialist (but not as prescribed in Code Ann. 68-1625 (b)) and sufficient evidence of the character discussed in Division 1 were presented to permit the admission of the test result in evidence, Code Ann. 68-1625 (b) would not be applicable and the evidentiary presumptions created by this statute would not arise from the results of such a test. But in such a case the evidence of intoxication or non-intoxication from the test would necessarily be established by expert testimony, and its probative value would be determined by the jury. Macon Busses, Inc. v. Dashiell, 73 Ga. App. 108, 116, supra; Anno. 21 ALR2d 1216; 77 ALR2d 971.
3. The evidence, without the document erroneously admitted, supported the verdict and the trial court did not err in overruling the general grounds of the motion for new trial. Judgment reversed. Nichols, P. J., and Russell, J., concur.
Preston M. Almand, Solicitor, McLeod & Galis, Denny C. Galis, contra.
Rupert A. Brown, for plaintiff in error.
DECIDED NOVEMBER 12, 1964.
Friday May 22 21:50 EDT


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