The Harper Standard and the Alcosensor: the Road Not Traveled

• Jurisdiction: Georgia,United States
• Citation: Vol. 6 No. 1 Pg. 0001
• Pages: 0001
• Publication year: 2000

Georgia Bar Journal Volume 6.

GSB Vol. 6, No. 1, Pg. 1. The Harper Standard and The Alcosensor: The Road Not Traveled

Georgia State Bar Journal
Vol. 6, No. 1, August 2000

"The Harper Standard and The Alcosensor: The Road Not Traveled"

By Lance J. LoRusso

Your client is stopped for speeding at midnight. He is on his way home from a holiday party where he consumed "a couple of drinks" on an empty stomach. He agrees to take all field sobriety evaluations including an alcosensor. He is arrested and charged with DUI. The officer reads the appropriate Implied Consent Warning, and the driver agrees to take a breath test. ue to traffic and a busy wrecker service the breath test is administered at 1:30 a.m. He registers .10 grams and he requests a personal test of his blood. Due to a busy Emergency Room, his blood is drawn at 3:00 a.m. The result is .08 grams. What happens to this powerful evidence The State of Georgia has progressively increased punishments and sanctions for driving under the influence of alcohol (DUI) during the past three years. Following a national trend, severe limitations have been placed upon the ability of a defendant to plead nolo contendere, to retain driving privileges and to avoid incarceration.1 Peace officers in Georgia make approximately 72,000 DUI arrests every year,2 resulting in a plethora of case law and debate over evidentiary issues. However, despite a downward trend in the number of DUI arrests, thousands of people are injured or killed in Georgia each year in alcohol-related accidents.3 Ironically, even though the stakes for a DUI conviction have increased dramatically, certain evidence of intoxication and impairment gained by officers during arrests remains inadmissible in Georgia courts. Consider the example given above. At trial, the prosecution cannotintroduce the numerical results of the alcosensor to show that the suspect's blood alcohol level was highest while he was driving. Similarly, the defense cannot show that the suspect's blood alcohol level was rising from the time he was arrested, and therefore argue that he would have been home before he reached the legal limit of intoxication of .10 grams of alcohol present in the suspect's blood. This powerful evidence from the alcosensor is currently lost in a mire of regulations and case law. The alcosensor4 is a hand-held device that measures the amount of alcohol present in the suspect's breath uring the roadside field sobriety evaluations. The alcosensor either gives a two or three digit numeric display showing the percentage of alcohol present in the suspect's blood, or simply reads positive or negative for alcohol in the bloodstream. The machine can be calibrated for accuracy and printers are available to create a record of the test results.5 Presently, the numeric results of the alcosensor evaluation are inadmissible in Georgia courts Only a positive or negative reading indicating the presence of alcohol in the blood stream is admissible.6 There are however, two sound reasons for including the numeric results. First, the fuel cell technology upon which the alcosensor relies satisfies the Harper7 standard for the admissibility of novel scientific evidence in Georgia. Second, the results are relevant, and any objections to the accuracy of the alcosensor results affect the weight, and not the admissibility, of that evidence.

The DUI Arrest

When a police officer stops a motorist suspected of DUI, the officer will ask the driver to submit to severalvoluntary field evaluations to determine if the driver is capable of safely operating a motor vehicle.8 During this assessment, the officer uses the alcosensor and other field sobriety evaluations to then determine if probable cause exists for placing the driver under arrest for DUI. The officer uses the alcosensor to either determine the amount of alcohol present in the suspect's bloodstream, or to rule out alcohol as an intoxicant. If the suspect is arrested for DUI, the officer implicitly relies upon the alcosensor reading to decide whether to request a blood, urine or breath test. Thus, the officer relies on the alcosensor to give an accurate reading. The science employed by the alcosensor is no less verifiable than the science employed by the current and former state-approved breath analyzing devices, the Intoxilyzer 5000 and the Intoximeter 3000, respectively. These large devices, referred to as the "state administered chemical test," are maintained in a jail or precinct and the results are used as substantive proof of the DUI defendant's level of intoxication under O.C.G.A. section 40-6-392(a).9 However, the state administered chemical test is only administered after the driver is placed under arrest.10 Even though the alcosensor and the Intoxilyzer 5000 rely on different scientific technology, both machines rely on the same correlation to determine the blood alcohol content ("BAC") of the suspect.11 Georgia courts have admitted chemical tests that were not obtained in accordance with O.C.G.A. section 40-6-392(a) as substantive evidence of the defendant's level of intoxication. In Dixon v. State,12 the court relied on the business record exception to allow the admission of a medical blood test as substantive proof of the defendant's level of intoxication even though the test did not comply with O.C.G.A. section 40-6- 392(a).13 The admission of the test was based upon the reliability of the test method and the testimony of the person who drew the blood. The sample was obtained by a registered nurse who testified at trial that she smelled a strong odor of an alcoholic beverage emanating from the defendant. The test was conducted in a medical laboratory according to methods acceptable in the industry. Therefore, it appears that the court was satisfied with the reliability of the evidence and found the rigid requirements of the statute inapplicable. The reliability of the scientific process by which evidence of a defendant's BAC is obtained should be the proper focus of the court in a DUI case. The fact remains that evidence of the defendant's BAC in the Dixon case was introduced at trial and the jury was permitted to weigh that evidence. Evidence of a defendant's BAC obtained during field sobriety evaluations via an alcosensor is obtained using recognized scientific principles and established procedures. Therefore, the results should be admitted for the jury to consider.

Admissibility of Alcosensor Results

Although police officers routinely rely upon the numeric alcosensor results, Georgia courts do not allow the numeric alcosensor results to be admitted as substantive proof of a DUI defendant's level of intoxication based upon two principles.14 First, the Georgia Division of Forensic Sciences ("DFS"), a division of the Georgia Bureau of Investigation, has approved the alcosensor only for use as a screening device.15 It is intended to allow the officer to determine if alcohol is the sole cause of impairment and if probable cause exists for a DUI arrest.16 A negative or low reading may indicate the presence of illegal or prescription drugs. Second, O.C.G.A. section 40-6-392 provides that the DFS shall designate the type of test that can be used as substantive proof of the defendant's level of intoxication in criminal and civil courts.17 The DFS has not approved the alcosensor for such use and in Turrentine v State,18 the Georgia Court of Appeals ruled that...