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Bailey v State – State Breath test on the Intoxilyzer 5000 is not necessarily valid

Bailey v. State, 323 Ga. App. 424, 747 S.E.2d 210 (2013). Christopher Bailey was found guilty of DUI per se under OCGA 40-6-391 (a)(5) by a jury. Bailey appealed alleging that the Fulton County Trial Court gave an erroneous instruction which shifted the burden to Defendant.  The DUI Trial Court in Atlanta charged the jury as follows: “Now, ladies and gentlemen, I’m going to give you the law as it relates to the inspection of the Intoxilyzer 500[0]. A chemical analysis of a person’s breath shall be considered valid under Georgia law if it has 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 of its electronic and operating components described by its manufacturer properly attached in good working order and by an individual possessing a valid permit issued by the Division of Forensic Services for the Sciences for this purpose.” [emphasis added]

Bailey objected to the charge and requested a mistrial thereby preserving his error for appeal. He appealed alleging that the Court had shifted the burden of proof to the Defendant by charging the jury that the State’s test had a conclusive presumption of validity in violation of the holding in Muir v. State, 248 Ga.App. 49, 545 S.E.2d 176 (2001) which involved nearly identical facts. The Court of Appeals agreed as the Prosecution has the burden of proving the weight and credibility of a breath test result to a jury beyond a reasonable doubt and they are certainly not presumptively valid.

Bailey also appealed based on improper communications with the jury by the bailiff outside of the presence of the court and lawyers.  The Jury had asked the Baliff if their decision had to be unanimous and he responded yes. The Court of Appeals did not address this issue stating that it certainly would not happen again on retrial.

-Author: George Creal