Walker v

State, 204 Ga. App. 559, 420 S.E.2d 17, cert. denied, 204 Ga. App. 922, 420 S.E.2d 17 (1992). Defendant’s motion to suppress the results of a blood test administered pursuant to a search warrant was properly denied because the statute dealing with chemical tests for alcohol or drugs in a defendant’s blood did not grant the defen- 390 dant the right to an independent test when the officer obtained a search warrant for a blood test; the defendant forfeited the defendant’s right to independent testing by refusing the arresting officer’s request to submit to a state-administered breath test after being advised under the implied consent law; and the defendant was not entitled to take advantage of the independent test incentive as the defendant refused to submit to the chemical testing requested by the arresting officer. Hynes v. State, 341 Ga. App. 500, 801 S.E.2d 306 (2017). State’s duty to obtain independent analysis, not sample. — Trial court properly determined that a police officer’s failure to take the defendant to another hospital to have the withdrawn blood sample actually analyzed after discovering that the original hospital would not perform such an analysis was not reasonable in light of the defendant’s request for an independent blood test; therefore, the trial court properly granted the defendant’s motion to suppress the results of the state’s intoximeter test. State v. Button, 206 Ga. App. 673, 426 S.E.2d 194 (1992). Once the accused requests an independent test, the officer’s duty is not simply to assist the individual in getting the individual’s blood drawn. Instead, the officer must accommodate the accused until the accused obtains an admissible test or until it is determined that despite reasonable efforts such a test cannot be obtained. Hulsinger v. State, 221 Ga. App. 274, 470 S.E.2d 809 (1996). When statutory rights to alternate tests attach. — Statutory rights to alternate tests do not attach until state has performed the state’s tests. Nor is a request for an alternate test made prior to testing by the state effective to trigger rights under Ga. L. 1974, p. 633, § 1 (see now O.C.G.A. § 40-6-392). Huff v. State, 144 Ga. App. 764, 242 S.E.2d 361 (1978). Right to an alternate test by a person of the defendant’s own choosing does not attach until the state has performed the state’s test. Modlin v. State, 176 Ga. App. 83, 335 S.E.2d 312 (1985); Rawl v. State, 192 Ga. App. 57, 383 S.E.2d 903 (1989). O.C.G.A. § 40-6-392 gives an accused 40-6-392 the right to an independent chemical test when there has been a test administered at the request of law enforcement officers, but the accused did not have the right to refuse the police-administered test and demand one of the defendant’s own choosing. Lufburrow v. State, 206 Ga. App. 250, 425 S.E.2d 368 (1992). Defendant’s failure to complete a breath test without justification negated the defendant’s right to an alternative test. Allen v. State, 229 Ga. App. 435, 494 S.E.2d 229 (1997). State’s burden that test results obtained according to guidelines. — State satisfied the state’s burden of proving that its test results were obtained in accordance with the statutory guidelines when it is without dispute that the defendant was properly advised of the defendant’s right to an additional chemical test and the trial court obviously accepted the defendant’s position that the defendant had indeed made such a request. Pruitt v. State, 203 Ga. App. 125, 416 S.E.2d 524, cert. denied, 203 Ga. App. 907, 416 S.E.2d 524 (1992). State’s failure to establish that the defendant was apprised of the defendant’s right to an independent test of the defendant’s own choosing precludes admission of the intoximeter results. State v. Peters, 211 Ga. App. 755, 440 S.E.2d 515 (1994). Independent testing responsibility of arrestee. — It is the responsibility of the arrestee, not of the officer, to designate the specifics of independent testing and the officer must be apprised by the arrestee of those specifics before the officer has a duty to facilitate the arrestee’s election. State v. Willis, 184 Ga. App. 639, 362 S.E.2d 444 (1987). Request for independent test. — Defendant’s questions concerning the procedure which would be followed if the defendant was arrested for driving under the influence and the defendant’s response after being told the defendant was entitled to an independent test showed that the defendant did make a sufficient request for an independent test. Church v. State, 210 Ga. App. 670, 436 S.E.2d 809 (1993). Defendant’s words, ‘‘Could I get a blood test?’’ could not be reasonably construed 391 Performance of Tests (Cont’d) as a request for an additional, independent test under O.C.G.A. § 40-6-392(a)(3). Under the circumstances, it appeared that the defendant’s request concerned the type of test the state would administer— blood versus breath—not a desire for an additional test. Mathis v. State, 298 Ga. App. 817, 681 S.E.2d 179 (2009). Trial court did not err in granting the defendant’s motion to suppress evidence of a state-administered breath test because the state failed to reasonably accommodate the defendant’s request for an independent blood test; when an officer learned that the defendant did not have sufficient cash for a blood test at one of the recommended hospitals the defendant should have been offered the opportunity to use a telephone to make other arrangements, and the officer’s unilateral determination that the defendant would be unable to pay for the blood test, without confirming the hospitals’ policies regarding payment and without offering to accommodate the defendant in obtaining a method of payment, was insufficient. State v. Davis, 309 Ga. App. 558, 711 S.E.2d 76 (2011). After the defendant was convicted of driving under the influence-per se, the defendant’s motion to suppress the results of a state-designated breath test was properly denied because, after placing the defendant under arrest and reading the defendant the Georgia implied consent notice, the trooper asked the defendant if the defendant was willing to submit to a chemical test of the defendant’s breath, but the defendant responded by saying that the defendant would take a urine test; the trooper then explained that the trooper was asking the defendant to submit to a breath test and the defendant agreed to submit to that test; and the defendant never requested an independent test of the defendant’s urine, blood, or breath. Farmer v. State, 335 Ga. App. 679, 782 S.E.2d 786 (2016). Judicial notice in determining opportunities for independent test. — Trial court’s ‘‘taking judicial notice’’ of the fact that the defendant would have only been permitted to make a collect call from 40-6-392 jail was not an impermissible factor in resolving the question of whether the defendant was given a reasonable opportunity to make arrangements for the independent blood test the defendant wanted. State v. Mallory, 180 Ga. App. 815, 350 S.E.2d 823 (1986). Ample opportunity for taking independent blood test required. — Defendant was not given an ample opportunity to take an independent blood test when the officer who took the defendant to a hospital for such a test told the defendant that the defendant did not have enough money to take the test, would not let the defendant talk to a clerk personally to negotiate another method of payment, and would not allow the defendant to contact relatives who lived near the hospital for financial assistance. State v. Buffington, 189 Ga. App. 800, 377 S.E.2d 548 (1989); Brady v. City of Lawrenceville, 206 Ga. App. 395, 425 S.E.2d 404 (1992). Defendant was improperly denied the defendant’s right to have an independent test performed when the defendant refused to go to any of the three hospitals chosen by the arresting officer and was denied access to another facility approximately ten miles from the location of the arrest. Akin v. State, 193 Ga. App. 194, 387 S.E.2d 35, cert. denied, 193 Ga. App. 909, 387 S.E.2d 351 (1989). Evidence that the arresting officer refused to authorize the defendant’s requests for testing at local hospitals, despite the defendant’s ability to pay for such testing, authorized the trial court’s finding that a reasonable effort was not made to accommodate the defendant’s request for an independent blood test. State v. Vandervoort, 215 Ga. App. 72, 449 S.E.2d 617 (1994). Because the arresting officer failed to make a reasonable effort to accommodate the defendant’s request to obtain an independent blood test in accordance with O.C.G.A. § 40-6-392(a)(3), but instead rebuffed every suggestion the defendant made in order to secure independent testing and, despite security risks, accommodations could have been made, the trial court did not err in granting the defendant’s motion in limine to suppress the results of the state-administered breath 392 test. State v. Howard, 283 Ga. App. 234, 641 S.E.2d 225 (2007). Denial of opportunity to obtain independent test. — Motion to suppress results of a state administered breath test was properly granted when police officers never gave the defendant the opportunity to ascertain the defendant’s family doctor’s telephone number or address in order to obtain a requested independent test. State v. White, 188 Ga. App. 658, 373 S.E.2d 840 (1988). When an arresting officer failed to warn the defendant ahead of time of a hospital’s payment policy for independent tests, even though the officer was fully aware that the defendant did not have sufficient funds to obtain a blood test at the hospital but nevertheless took the defendant there without warning the defendant of the policy, so as to enable the defendant to attempt to make arrangements to secure the necessary funds, the officer failed to make a reasonable effort to accommodate the defendant’s desire for an independent chemical test and the intoximeter test results should have been excluded. Love v. State, 195 Ga. App. 392, 393 S.E.2d 520 (1990); State v. Brodie, 216 Ga. App. 198, 453 S.E.2d 786 (1995). When a defendant was transported from one facility to another and made the request for independent tests once the defendant was allowed to make telephone calls, the defendant’s request was made within a reasonable time. Because the state failed to present any evidence at the suppression hearing from which the trial court could find the failure to respond to the defendant’s timely request was justified, the evidence of the results of the breath test should have been suppressed. Covert v. State, 196 Ga. App. 679, 396 S.E.2d 596 (1990). Court’s failure to suppress the result of an intoximeter test was error when the defendant asked the arresting police officer to take the defendant to the closest hospital which could administer a blood test, and the officer made an apparently innocent mistake in assuming that no hospitals in the area could administer a legally admissible test. The end result was that the defendant was unable to have an independent blood test which, in effect, 40-6-392 amounted to an unjustifiable refusal to permit the defendant an opportunity for an independent test by a person of the defendant’s own choosing. O’Dell v. State, 200 Ga. App. 655, 409 S.E.2d 54, cert. denied, 200 Ga. App. 896, 409 S.E.2d 54 (1991). Upon arrest for driving under the influence, the defendant did not waive the right to a second test under O.C.G.A. § 40-6-392 since although the defendant did not have cash to pay for the test, the defendant did have a credit card and automated teller machine card; police had the duty to reasonably accommodate the defendant and should have allowed the defendant to use a telephone or should have taken the defendant where the defendant could use the teller machine card to obtain necessary cash. Butts v. City of Peachtree City, 205 Ga. App. 492, 422 S.E.2d 909 (1992). Police officer did not make a reasonable effort to accommodate the defendant’s request to obtain an independent breath test after admitting to the defendant that the intoximeter machine used to test the defendant was not functioning properly and a functioning machine was available in the same room. State v. Beall, 211 Ga. App. 799, 440 S.E.2d 537 (1994). Police officer’s testimony that the officer did not accommodate the defendant’s request for an independent blood test, as was required pursuant to O.C.G.A. § 40-6-392(a)(3), because the officer speculated that the defendant would bond out of jail and go get the defendant’s own test did not show that the state either complied with the statute or that the state offered sufficient justification for not accommodating the request; thus, the defendant’s convictions for driving under the influence to the extent the defendant was less safe and driving with an unlawful blood alcohol content had to be reversed. Smith v. State, 250 Ga. App. 583, 552 S.E.2d 528 (2001). Denial of the defendant’s motion to suppress for failure to give the defendant a reasonable opportunity to have an additional breath test performed by a person of the defendant’s own choosing pursuant to O.C.G.A. § 40-6-392(a)(3) was not error; complying with the defendant’s re- 393 Performance of Tests (Cont’d) quest would have taken a trooper away from an accident with injuries that required the trooper’s presence, the location requested by the defendant was over 40 miles away and outside the trooper’s territory, and there was no evidence that the defendant had made arrangements for a test by the defendant’s personal physician. Smith v. State, 277 Ga. App. 81, 625 S.E.2d 497 (2005). Officer’s failure to drive a defendant to the defendant’s physician’s office outside of the officer’s jurisdiction, 30-45 minutes away, at a time when the office was likely closed and when the officer’s jurisdiction was short-handed, was justified. The officer offered to take the defendant to another independent testing facility and to give the defendant a phone book to find another facility. Ritter v. State, 306 Ga. App. 689, 703 S.E.2d 8 (2010). Defendant was not denied opportunity to obtain independent test. — After the defendant was arrested for driving under the influence, and there was conflicting testimony on whether the jailer prevented the individual who came to the defendant’s assistance from obtaining an independent test for the defendant, sufficient evidence was presented from which the trial court could rightly conclude that a reasonable effort was made to accommodate the defendant’s request for an independent test and that the defendant was not prevented by any action on the part of the law enforcement authority from obtaining the test. Gray v. State, 194 Ga. App. 811, 392 S.E.2d 290 (1990). When the defendant was offered the opportunity to obtain an independent test but the medical facility selected refused to perform the test, and when again offered the opportunity to have an independent test conducted, the defendant did not select another facility, but became argumentative with the police officers, the trial court properly found that the defendant was afforded a reasonable opportunity to make arrangements for an independent test, but that the defendant had not done so. Jenkins v. State, 198 Ga. App. 843, 403 S.E.2d 859 (1991). When the defendant exercised the de- 40-6-392 fendant’s right to an independent test of the defendant’s own choosing by demanding, in writing, an additional breath test, which was performed 20 minutes after the first test by the same officer on the same intoximeter, and yielded the same result, the defendant was afforded the opportunity to obtain an independent test of the defendant’s blood-alcohol content. Caldwell v. State, 202 Ga. App. 729, 415 S.E.2d 653 (1992). Because the trial court found that the arresting officer made a reasonable effort to accommodate the defendant’s request for an independent blood test pursuant to O.C.G.A. § 40-6-392(a)(3), the court did not err in denying the defendant’s motion to suppress the blood test. Whittle v. State, 282 Ga. App. 64, 637 S.E.2d 800 (2006). Waiver of alternative test need not be shown. — State is not required to make an affirmative showing that the driver waived the driver’s right to an independent blood-alcohol test by a person of the driver’s own choosing. Hudgins v. State, 176 Ga. App. 719, 337 S.E.2d 378 (1985). Paragraph (a)(4) of O.C.G.A. § 40-6-392 does not require an affirmative showing of a waiver of right to additional chemical test or an actual request for additional test. Test is valid if the defendant was informed of the defendant’s rights to additional testing at the time of the defendant’s arrest. State v. Dull, 176 Ga. App. 152, 335 S.E.2d 605 (1985); Pruitt v. State, 203 Ga. App. 125, 416 S.E.2d 524, cert. denied, 203 Ga. App. 907, 416 S.E.2d 524 (1992). Arresting officer must advise the testee that the testee is entitled to an independent test (for alcoholic consumption) of the testee’s own choosing but need not show that the defendant testee either waived the defendant’s right to such a test or sought the additional test. Snelling v. State, 176 Ga. App. 192, 335 S.E.2d 475 (1985). State need not establish that the defendant made an affirmative waiver of the defendant’s right to an independent test. Martin v. State, 176 Ga. App. 871, 338 S.E.2d 298 (1985). Sufficient compliance with the ‘‘implied 394 consent’’ statute is established by evidence showing that the accused was given timely notice of the accused’s implied consent rights and thereafter made no request for an independent chemical test. Martin v. State, 176 Ga. App. 871, 338 S.E.2d 298 (1985). Affirmative showing of waiver or request for an additional test is not required. State v. Carter, 178 Ga. App. 677, 344 S.E.2d 499 (1986). State is under no duty to show a driver’s affirmative waiver of an additional chemical test. State v. Tosar, 180 Ga. App. 885, 350 S.E.2d 811 (1986). No reversal when state testified to only one breath test. — Appeals court rejected the defendant’s argument that the evidence was insufficient to support a conviction for driving under the influence of alcohol per se because only one breath test was testified to by the state and O.C.G.A. § 40-6-392(a)(1)(B) mandated that two breath tests had to be given; moreover, even if the court were to agree with this contention, the defendant waived this argument by failing to make any objection at trial to the admission of the single breath test. Annaswamy v. State, 284 Ga. App. 6, 642 S.E.2d 917 (2007). Driver responsible for costs of alternative tests. — Law does not require the government to pay for two tests. The second is the driver’s option, so that the driver may challenge the results of the officer’s requested test. The cost of the optional test, to be administered by a qualified person of the driver’s own choosing, must be borne by the driver, at least when the driver is able to pay. Thompson v. State, 175 Ga. App. 645, 334 S.E.2d 312 (1985). Duty of officers to take driver to hospital for requested test. — Ga. L. 1974, p. 633, § 1 (see now O.C.G.A. § 40-6-392) gives one accused of driving under the influence of alcoholic beverages the right to have a chemical analysis of the accused’s blood and urine by a qualified person of the accused’s own choosing. There is coupled with the right granted to the accused, however, a corresponding duty on the part of law enforcement officers not to deny the accused that right by 40-6-392 refusing or failing to take the accused to a hospital for the test the accused wants and is reasonably entitled to have. Puett v. State, 147 Ga. App. 300, 248 S.E.2d 560 (1978). Before duty of police arises to transport the defendant to a location of independent test, and before there is a breach of that duty which may give reason to suppress the evidence of the state-administered test, the defendant must first show that the defendant had made arrangements with a qualified person of the defendant’s own choosing, that the test would be made if the defendant came to the hospital, that the defendant so informed the personnel at the jail where defendant was under arrest, and that those holding the defendant either refused or failed to take the defendant to the hospital for that purpose. Lovell v. State, 178 Ga. App. 366, 343 S.E.2d 414 (1986); Melvin v. State, 205 Ga. App. 799, 423 S.E.2d 718 (1992). State’s test not suppressed due to defendant’s inability to obtain test. — Mere fact that a defendant was unable to obtain a chemical test of the defendant’s own choosing fails to disclose any reason to suppress the results of the state’s breathalyzer test. Grizzle v. State, 153 Ga. App. 364, 265 S.E.2d 324 (1980); Harper v. State, 164 Ga. App. 230, 296 S.E.2d 782 (1982); Melvin v. State, 205 Ga. App. 799, 423 S.E.2d 718 (1992). When the defendant is afforded the opportunity for an independent test, the fact that the defendant is unable to obtain the method of the defendant’s own choosing does not of itself require suppression of the state’s test results. Dozier v. State, 187 Ga. App. 51, 369 S.E.2d 328 (1988); Cadden v. State, 213 Ga. App. 291, 444 S.E.2d 383 (1994). Consent to test valid when advice properly given. — When a driver has been advised of the driver’s rights to submit to a chemical test as required by paragraph (a)(4) of O.C.G.A. § 40-6-392, the driver’s consent to submit to the test is a valid informed choice. Griggs v. State, 167 Ga. App. 581, 307 S.E.2d 75 (1983). Driver not entitled to lawyer at time of test. — Driver is not entitled to the presence of a lawyer, as requested, at the time the driver was asked to submit to 395 Performance of Tests (Cont’d) a chemical test. Cogdill v. Department of Pub. Safety, 135 Ga. App. 339, 217 S.E.2d 502 (1975). One is not entitled to advice of counsel when confronted with a decision as to whether to submit to a test under the implied consent law. Oyler v. State, 175 Ga. App. 486, 333 S.E.2d 690 (1985). Timely notice to defendant. — Arresting officer adequately complied with the requirements of O.C.G.A. § 40-6-392(a)(4) when the officer gave the warning to the defendant prior to administering the intoximeter test approximately ten minutes after the defendant’s arrest. Martin v. State, 211 Ga. App. 561, 440 S.E.2d 24 (1994). Trial court did not err in denying a motion to suppress evidence of the blood-alcohol results obtained after the defendant’s vehicle was stopped as it was determined that the defendant was driving under the influence, and the police officer waited until a proper time to notify the defendant of the right to take a chemical test; the defendant consented to such a test as a driver using a vehicle on the Georgia highways and the delay in administering the implied consent warning was due to the defendant’s drunken condition and difficult behavior. Cain v. State, 274 Ga. App. 533, 617 S.E.2d 567 (2005). When the officer placed the defendant in handcuffs after the field sobriety tests concluded, the implied consent notice was considered timely read to the defendant because the officer promptly read the implied consent notice to the defendant after placing the defendant in the back of the patrol car; and the record failed to show how the defendant would have benefitted from the notice being read earlier as it might have caused confusion for it to have been read before the officer asked for an alco-sensor test as part of the field sobriety evaluation. State v. Domenge-Delhoyo, 338 Ga. App. 439, 790 S.E.2d 139 (2016). Factors which weigh into an appellate court’s decision to conclude that the implied consent notice is timely include: whether the notice was given at the earliest time at or after arrest when it would be meaningful and a defendant could 40-6-392 make an intelligent choice; how the defendant would have benefitted by being read the implied consent notice earlier when an officer properly delays the reading of implied consent for a brief period in order to attend to the exigencies of police work; and that the notice was given on the scene of the arrest rather than after transport to another location. State v. Domenge-Delhoyo, 338 Ga. App. 439, 790 S.E.2d 139 (2016). Advisement of rights timely although officer momentarily interrupted. — Results of the defendant’s intoximeter test were admissible because the arresting officer advised the defendant of the defendant’s rights under the implied consent law as close in proximity to the instant of arrest as the circumstances warranted since after the officer stopped the defendant and put the defendant in the patrol car, the officer got a call and went after another vehicle, picked up the driver and then took both of the drivers to the police station and read the defendant the implied consent rights while the drivers were in the patrol car. Fore v. State, 180 Ga. App. 196, 348 S.E.2d 579 (1986). Non-English speaking driver. — When the law enforcement officer cannot communicate with the driver because the driver cannot speak English, any failure to obtain an additional test is justifiable and the results of the state-administered tests are admissible. State v. Tosar, 180 Ga. App. 885, 350 S.E.2d 811 (1986). Retention of blood samples for unconscious defendant. — State is not required to take and retain blood samples for use by an unconscious defendant in the event the defendant desires an independent test by someone of the defendant’s own choosing after regaining consciousness. Bartell v. State, 181 Ga. App. 148, 351 S.E.2d 495 (1986). State need not preserve breath sample. — Trial court did not err in ruling that the state was not required to preserve a breath sample for later independent testing by the defendant nor did the court err in denying the appellant’s motion for mistrial on that basis. Kuptz v. State, 179 Ga. App. 150, 345 S.E.2d 670 (1986). Defendant’s failure to recall not inconsistent with state’s showing of re- 396 fusal. — Defendant’s failure to recall the circumstances following a collision did not contradict the state’s prima facie showing that the defendant was in a communicative condition — not dead, unconscious or otherwise incapable of refusing the test — when informed of the defendant’s rights and thereafter refused chemical testing of the defendant’s blood. Duncan v. State, 183 Ga. App. 368, 358 S.E.2d 910 (1987). Timely test, with administratively approved methods, not suppressed. — From the terms of paragraph (a)(1) of O.C.G.A. § 40-6-392, it is clear that the chemical test of an arrestee’s breath is intended to reflect the arrestee’s blood-alcohol level at the ‘‘alleged time’’ that the arrestee was driving under the influence, not at some later time, and it is also clear that the test is to be conducted in accordance with methods which have been administratively approved, not in accordance with any other ‘‘approved’’ methods. When there is no evidence that a ‘‘20-minute’’ rule has ever been administratively approved, an arrestee is not entitled to have suppressed from evidence the results of an intoximeter test which was shown to have been conducted within 20 minutes of the ‘‘alleged time’’ and in accordance with all administratively approved methods. State v. Richardson, 186 Ga. App. 888, 368 S.E.2d 825 (1988). Retest allowed. — When, due to inadvertence, a breathalyzer test of a defendant’s breath cannot be completed, and a retest is possible without inconveniencing the defendant and without delay, such a retest is not a violation of the defendant’s rights and is not a basis for suppression of the results of the test. Montgomery v. State, 174 Ga. App. 95, 329 S.E.2d 166 (1985). Lack of opportunity to take urine test not error. — Fact that a defendant who was given a breathalyzer test and a blood test requested by the defendant did not have the opportunity to take a urine test was not error. Massengale v. State, 174 Ga. App. 480, 330 S.E.2d 417 (1985). Evidence showing chemical test in statutory compliance. — See McNair v. State, 177 Ga. App. 502, 339 S.E.2d 773 (1986); Magher v. State, 199 Ga. App. 508, 405 S.E.2d 327 (1991). 40-6-392 Trial court erred in suppressing the results of a blood alcohol content breath test when the test was conducted in accordance with methods adopted by the Division of Forensic Sciences of the Georgia Bureau of Investigation; any deviation from the machine’s operator’s manual went to the weight and not to the admissibility of the results, and the 20 minute waiting period between taking samples was not part of the approved methods of testing. State v. Palmaka, 266 Ga. App. 595, 597 S.E.2d 630 (2004). Admissibility of Results Admissibility of test results into evidence in a criminal proceeding is affected by O.C.G.A. § 40-6-392. State v. Johnston, 160 Ga. App. 71, 286 S.E.2d 47 (1981), aff ’d, 249 Ga. 413, 291 S.E.2d 543 (1982). Under O.C.G.A. § 40-6-392, a chemical analysis of a person’s breath is admissible in a criminal proceeding for the offense of driving under the influence of alcohol, but only if obtained in accordance with specific statutory guidelines. State v. Johnston, 160 Ga. App. 71, 286 S.E.2d 47 (1981), aff ’d, 249 Ga. 413, 291 S.E.2d 543 (1982). Implied consent warning properly advised the driver of the purposes for which the driver’s blood was to be tested, and the test results were thus admissible in a prosecution for driving with the presence of marijuana in the driver’s blood. Radcliffe v. State, 234 Ga. App. 576, 507 S.E.2d 759 (1998). Trial court properly admitted evidence of the defendant’s blood tests in a criminal trial as a proper foundation was laid by the state for purposes of admission under O.C.G.A. § 40-6-392(a)(1)(A) after the supervisor of the person who ran the blood test reviewed the research and results of the test and testified regarding the procedure and results thereof. Verlangieri v. State, 273 Ga. App. 585, 615 S.E.2d 633 (2005). Trial court erred in suppressing the defendant’s refusal to submit to a state-administered chemical breath test as the implied consent notice given by a sheriff ’s deputy was substantially accurate and timely given, and irrespective of 397 Admissibility of Results (Cont’d) whether the refusal resulted from the defendant’s confusion about the defendant’s right to, and insistence on, a blood test, it nevertheless remained a refusal. State v. Brookbank, 283 Ga. App. 814, 642 S.E.2d 885 (2007). Trial court erred in granting the defendant’s motion to suppress a breath test slip from an intoxilyzer and all testimony about the intoxilyzer because the state was not required to produce the breath test slip to the defendant ten days before trial as a part of discovery since the breath test slip did not constitute a written scientific report within the meaning of O.C.G.A. § 17-16-23; no test or analysis was performed because the sample was insufficient, and the breath test slip did not show any test results but reflected only a measurement of breath volume. State v. Tan, 305 Ga. App. 55, 699 S.E.2d 74 (2010). Grant of the defendant’s motion to suppress was reversed because the trial court erred in concluding that the defendant did not actually consent to the state-administered blood test under the totality of the circumstances as the undisputed evidence in the video recording demonstrated that the defendant’s consent was free and voluntary and the 20-minute delay in the officer’s implied consent notice resulted from the officer complying with the defendant’s request to perform field sobriety tests. State v. Domenge-Delhoyo, 338 Ga. App. 439, 790 S.E.2d 139 (2016). Properly-conducted test admissible. — Results of immunoassay test performed on the defendant’s blood were admissible after the test was done in accordance with procedures approved by the state crime laboratory as specified by paragraph (a)(1) of O.C.G.A. § 40-6-392. Jackson v. State, 198 Ga. App. 261, 401 S.E.2d 289 (1990), cert. denied, 198 Ga. App. 898, 401 S.E.2d 289 (1991). Blood tests performed on machines acceptable to the Department of Forensic Science yielding results indicating whether an illegal substance was present in the defendant’s blood were admissible. Radcliffe v. State, 234 Ga. App. 576, 507 S.E.2d 759 (1998). 40-6-392 Trial court did not err in denying the defendant’s motion to exclude evidence of breathalyzer test results as the state introduced certificates of the Intoxilyzer machine used to obtain breath tests and the machine’s operator testified the machine was working properly at the time the tests were administered, and thus, the state established the machine was operating at the time the defendant’s breathalyzer tests were conducted. Young v. State, 275 Ga. 309, 565 S.E.2d 814 (2002). Due to the defendant’s agreement to chemical testing, and subsequent submission to the testing, admission of the state-administered chemical test was proper. Doyle v. State, 281 Ga. App. 592, 636 S.E.2d 751 (2006). Defendant’s argument, that the officer advised the defendant that the defendant was under arrest for driving under the influence and not for a violation of O.C.G.A. § 40-6-391(a)(6) and that the defendant never consented to the testing of the defendant’s blood for the presence of drugs, failed; nothing in O.C.G.A. § 40-5-55 or O.C.G.A. § 40-6-392 required the officer to tell the defendant that the defendant was under arrest for a drug offense in order for the implied consent to be valid. Meiklejohn v. State, 281 Ga. App. 712, 637 S.E.2d 117 (2006). Trial court did not err in denying a defendant’s motion to suppress the results of the defendant’s horizontal gaze nystagmus (HGN) field sobriety test and of the Intoxilyzer 5000 breath test as the administrating officer testified to the officer’s experience and training as well as the testing and scoring method used regarding the HGN test, and the defendant’s constitutional challenges to the admissibility of the Intoxilyzer 5000 breath test results had already been decided in prior case law precedent adversely to the defendant. Laseter v. State, 294 Ga. App. 12, 668 S.E.2d 495 (2008). Evidence was sufficient for the trial court to find beyond a reasonable doubt that the defendant was guilty of driving an automobile with an unlawful alcohol concentration in violation of O.C.G.A. § 40-6-391(a)(5) because to carry the state’s burden to show that the Intoxilyzer machine on which the defendant’s breath 398 was tested was operated with all the machine’s electronic and operating components attached and in good working order, the state produced certificates of inspections conducted on the machine before and after the test, and the testimony of the operator that the machine was operating properly when the test was conducted; the machine produced test results showing that the defendant had an alcohol concentration of 0.179 grams. Yeary v. State, 302 Ga. App. 535, 690 S.E.2d 901 (2010). Court of appeals did not err in reversing an order granting the defendant’s motion to suppress evidence of the state’s breath test results because the procedures followed by the state comported with the fundamental fairness required by due process; the police officer delivered to the defendant the required implied consent notice in an accurate and timely manner, thereby informing the defendant of the right to an independent test under O.C.G.A. § 40-6-392(a)(3). Thus, the state was under no constitutional duty to immediately inform the defendant of the results of the state-administered breath test. Padidham v. State, 291 Ga. 99, 728 S.E.2d 175 (2012). Admissibility of refusal. — While it is not improper, in light of O.C.G.A. § 40-6-392(d), to instruct a jury that evidence of a defendant’s refusal to submit to chemical testing of the defendant’s bodily substances is admissible against the defendant, or that the jury could infer the presence of alcohol from the defendant’s refusal, Georgia law does not permit a jury to infer from a defendant’s refusal of chemical testing that the test would have showed that alcohol impaired the defendant’s driving; impaired driving ability depends solely upon an individual’s response to alcohol, which varies from person to person, such that the presence of alcohol in a defendant’s body, by itself, does not support an inference that the defendant was an impaired driver for purposes of O.C.G.A. § 40-6-391(a)(1). Baird v. State, 260 Ga. App. 661, 580 S.E.2d 650 (2003). Evidence of the defendant’s refusal to submit to voluntary field sobriety tests was admissible, and was not testimonial 40-6-392 in nature and thus subject to the Fifth Amendment protection against self-incrimination as a refusal to submit to the tests was not testimonial in nature, and the mere fact that the defendant refused to submit to a blood test was not subject to the privilege against self-incrimination since no impermissible coercion was involved, regardless of the form of refusal. Ferega v. State, 286 Ga. App. 808, 650 S.E.2d 286 (2007), cert. denied, 129 S. Ct. 195, 172 L.Ed.2d 140 (2008). Defendant’s DUI conviction was upheld on appeal as the evidence of guilt was overwhelming, specifically: smelling strongly of alcohol, having trouble walking and speaking, fumbling with a wallet, a half-empty can of beer in the defendant’s truck, hiding the truck’s keys and a license in the bathroom, the officer having just seen the defendant driving, despite the defendant’s claim to the contrary, and the multiple similar transactions. Caraway v. State, 286 Ga. App. 592, 649 S.E.2d 758 (2007), cert. denied, No. S07C1736, 2007 Ga. LEXIS 686 (Ga. 2007). Because the defendant’s apparent violation of O.C.G.A. § 40-6-16(a) gave the investigating officer a reasonable and articulable suspicion to stop the defendant and inquire further, the trial court erred in granting the defendant’s motion to suppress a refusal to take a breath test in connection with DUI charges; moreover, the trial court erroneously concluded that the defendant could have had an innocent explanation for a last-minute swerve to avoid hitting the officer’s patrol car as the issue went to the question of guilt or innocence and was not the dispositive question on a motion to suppress. State v. Rheinlander, 286 Ga. App. 625, 649 S.E.2d 828 (2007). As a defendant, convicted of driving under the influence, had been read the implied consent rights as soon after the arrest as was warranted under the circumstances, as required by O.C.G.A. § 40-6-392(a)(4), defense counsel was not deficient for not subpoenaing an officer to establish the contrary and thereby prevent admission of evidence that the defendant refused to submit to a breath test. Lynch v. State, 293 Ga. App. 858, 668 S.E.2d 264 (2008). 399 Admissibility of Results (Cont’d) Trial court properly denied the defendant’s motion in limine to exclude evidence that the defendant refused chemical testing based on the testimony of a deputy that while in the defendant’s hospital room, a ticket was written for drunk driving and the defendant was advised of the custodial arrest; thus, there was no error in the trial court’s determination that a reasonable person in the defendant’s position would not think that they were free to leave at the time the deputy read the implied consent warnings. Plemmons v. State, 326 Ga. App. 765, 755 S.E.2d 205 (2014). In the defendant’s DUI trial, O.C.G.A. § 40-6-391(a)(1), because a breath test was permitted as a search incident to the defendant’s DUI arrest, the defendant’s refusal to take the breath test was not the exercise of the constitutional right against unreasonable searches and seizures, and evidence of the defendant’s refusal was properly admitted under O.C.G.A. § 40-5-67.1(b). Cherry v. State, No. A17A2085, 2018 Ga. App. LEXIS 116 (Feb. 21, 2018). Admissibility after initial refusal. — Trial court was not required to suppress evidence of the defendant’s breath test results, although it was clear that the defendant refused to take a breath test when asked at the scene as the defendant rescinded that refusal by agreeing to take the test at the police station. Stapleton v. State, 279 Ga. App. 296, 630 S.E.2d 769 (2006). Test made more than eight hours after arrest not admitted. — Trial court did not err in excluding the defendant’s testimony regarding an independent blood test made more than eight hours after the arrest. Allen v. State, 229 Ga. App. 435, 494 S.E.2d 229 (1997). Evidence inadmissible when untimely notice to defendant. — Officer’s preference that officer read the implied consent warning in the presence of a witness was not sufficient reason to excuse the officer’s failure to give the warning at the time of arrest. State v. Lamb, 217 Ga. App. 290, 456 S.E.2d 769 (1995). Accidents involving serious injuries. — Absent an arrest, a person in- 40-6-392 volved in an accident resulting in serious injuries or fatalities must be informed of the person’s implied consent rights within a reasonable amount of time after the accident, as determined by the circumstances, and, when possible, before the administration of any state tests. Seith v. State, 225 Ga. App. 684, 484 S.E.2d 690 (1997). Trial court erred in granting the defendant’s motion to suppress results from a blood test performed prior to any arrest as: (1) the evidence showed that the defendant was involved in a car wreck resulting in serious injury before blood was drawn; and (2) a sheriff ’s deputy had probable cause to suspect that the defendant had been driving under the influence of alcohol; moreover, contrary to the defendant’s assertion, the fact that a loss of consciousness was temporary did not cause the blood test to fall outside the ambit of O.C.G.A. § 40-5-55(c). State v. Umbach, 284 Ga. App. 240, 643 S.E.2d 758 (2007). Consent implied by taking. — State does not have to show the defendant’s actual consent, but only that, after being advised of the defendant’s rights pursuant to O.C.G.A. § 40-6-392, the defendant did not refuse to submit to the state-administered test. Wadsworth v. State, 209 Ga. App. 333, 433 S.E.2d 419 (1993). Implied consent warnings were timely when the warnings were given by the officer after the officer attended to matters at the scene that were necessary, including attending to the defendant’s injuries and making certain the scene was cleared. Morrissette v. State, 229 Ga. App. 420, 494 S.E.2d 8 (1997). An officer issued a ‘‘be on the lookout’’ (BOLO) after the defendant, who had struck a car and smelled of alcohol, sped off; the officer did not mention that the defendant appeared intoxicated. A second officer who heard the BOLO and detained the defendant at a restaurant did not have probable cause to arrest the defendant; therefore, the fact that the defendant was not read the defendant’s implied consent rights until other officers arrived and arrested the defendant did not make the implied consent advisement untimely under O.C.G.A. § 40-6-392(a)(4). Lynch v. 400 State, 293 Ga. App. 858, 668 S.E.2d 264 (2008). Trial court did not err by refusing to suppress the defendant’s blood-test results based on not being under arrest prior to being read Georgia’s implied consent notice because, although the defendant’s recollection differed from that of the law-enforcement officer, and although defense counsel cross-examined the officer extensively as to alleged inconsistencies in the chronology of events, the officer testified that the officer issued citations to the defendant before reading Georgia’s implied consent notice. Chernowski v. State, 330 Ga. App. 702, 769 S.E.2d 126 (2015). Judicial notice of test results. — Trial courts may take judicial notice that Intoximeter 3000 machine test results are based on accepted scientific theory or rest upon the laws of nature; and, when the statutory requirements for admissibility are met, the results may be admitted into evidence without expert testimony regarding the scientific theory behind the operation of the test. Lattarulo v. State, 261 Ga. 124, 401 S.E.2d 516 (1991), cert. denied, 502 U.S. 823, 112 S. Ct. 86, 116 L. Ed. 2d 59 (1991); McClendon v. State, 201 Ga. App. 262, 410 S.E.2d 760 (1991). Trial court did not err in admitting the results of a breath test over the defendant’s objections that the ‘‘methods’’ used to test the defendant were not contained in the Georgia Bureau of Investigation’s published administrative regulations. Rowell v. State, 229 Ga. App. 397, 494 S.E.2d 5 (1997). Failure to continuously watch the defendant for 20 consecutive minutes prior to the breath test did not require exclusion of the test results when the evidence shows that the 20-minute rule was substantially complied with and, although an accused can always introduce evidence of the possibility of circumstances that might cause error in the test results, such evidence relates to the weight rather than the admissibility of the test results. Berkow v. State, 243 Ga. App. 698, 534 S.E.2d 433 (2000). Trial court properly refused to suppress evidence of a defendant’s chemical breath test; testimony from an officer and proof 40-6-392 that a current implied consent card contained the same language as the card used during the defendant’s arrest allowed the trial court to conclude that the officer had advised the defendant of the defendant’s implied consent rights, and as there was evidence that the breath test machine was working properly at the time of the defendant’s breath test, any argument regarding the machine’s subsequent removal or repair went to the weight of the results, not their admissibility. Jones v. State, 285 Ga. App. 352, 646 S.E.2d 323 (2007), cert. denied, No. S07C1407, 2007 Ga. LEXIS 758 (Ga. 2007). Breath test admissible despite delay. — Breath test results were admissible at a trial for a violation of O.C.G.A. § 40-6-391(a)(1) and (a)(5) as the police officer’s notification to the defendant of the implied consent rights under O.C.G.A. § 40-6-392(a)(4) was timely in the circumstances; although the defendant was placed in the police car and not given the notification for 18 minutes, the notice was timely because the officer was attending to the passenger and ensuring that the passenger was unharmed and had a safe way to get home and the officer was transporting possession of the vehicle for purposes of impounding the vehicle. Naik v. State, 277 Ga. App. 418, 626 S.E.2d 608 (2006). Admission of first test result when unable to complete second test. — Fact that a defendant did not have sufficient breath to complete the second of two breath tests did not require suppression of the first test which indicated a blood alcohol level of .146. Thrasher v. State, 292 Ga. App. 566, 666 S.E.2d 28 (2008). Breath test admissible despite refusal to permit defendant to consult with counsel. — Motion filed by a defendant to exclude the results of a breath test under the Georgia implied consent law in the defendant’s prosecution for driving under the influence under O.C.G.A. § 40-6-391 was properly denied because the defendant was not entitled to the advice of counsel before deciding whether to submit to the test; the right to counsel under U.S. Const., amend. 6 and Ga. Const. 1983, Art. I, Sec. I, Para. XIV did not come into play until the proceedings 401 Admissibility of Results (Cont’d) had reached a critical stage, and the breath test was not such a stage because it did not signal the beginning of a formal adversary hearing and because a lawyer could add little to the warnings required from the officer administering the test by O.C.G.A. § 40-6-392(a)(4). Rackoff v. State, 281 Ga. 306, 637 S.E.2d 706 (2006). Suppressed breath test results remained admissible for impeachment purposes. — Despite an order suppressing the defendant’s breath test results, the results remained admissible for impeachment purposes once the defendant testified that the limited alcohol consumed did not affect or impair an ability to drive. Moreover, absent bad faith or an order requiring production, the state did not fail to fully disclose all information regarding the defendant’s breath test. Rosandich v. State, 289 Ga. App. 170, 657 S.E.2d 255 (2008), cert. denied, No. S08C0861, 2008 Ga. LEXIS 380 (Ga. 2008). Artistic tendencies as justification for juror striking. — Trial court did not err in denying the defendant’s Batson challenge regarding the state’s peremptory strike of an African-American juror who was a dance instructor as the prosecutor explained that the prosecutor struck the juror because people in artistic professions had ‘‘a different slant,’’ discriminatory intent was not inherent in this race-neutral explanation, and the juror was not similarly situated to other jurors who were not stricken. White v. State, 258 Ga. App. 546, 574 S.E.2d 629 (2002). Admissibility of an alco-sensor test result is not governed by O.C.G.A. § 40-6-392. Simms v.