Can I Get The Breathalyzer Test Suppressed for My DUI?

Question: I live in Cumming, GA and I work in Roswell but I got pulled over by an Alpharetta police officer. He said I didn't maintain my lane and that I was speeding. I was out with my wife for an anniversary dinner and we ate at a restaurant on Canton Street and then we went to another restaurant on Windward Parkway (Vinny's on Windward Parkway) for a glass of wine.

I think I did have a little too much but I certainly was not drunk and didn't feel really buzzed. My wife said I was fine to drive. When I got stopped the cop asked me to do some tests, including looking at my eyes. I did the walking test and fell twice but I don't think it was from the alcohol; it was probably from a bad knee or ankle.

When the cop asked if I'd take the breathalyzer test I said I would. I took it at the jail after he arrested me. My score was .192. I know that's high but I didn't think that some wine, 3 beers and 2 mixed drinks over 4 hours was that much booze.

Is it easy to have that breathalyzer test thrown out?

Answer: It is not "easy" under Georgia law to have an Intoxilyzer test suppressed by a court. The Court of Appeals, in State v. Naik, 259 Ga. App. 603, 577 S.E.2d 812 (2003), held that it is not necessary that the operator of the Intoxilyzer machine testify that the test was performed according to methods approved by the Georgia Bureau of Investigation as required by O.C.G.A section 40-6-392. The operator must only testify that (1) he had a permit, (2) that the machine appeared to have all of its parts attached and in good working order, and (3) the machine had been tested periodically. That's all the police officer will have to testify to.

Now, it's possible that the police officer lacked the proper permit, that the machine was missing a part or the machine was not tested regularly. But I doubt the cop will testify to that. We have gotten officers to testify in that way, but most will not, even if an issue exists.

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