The Administrative Procedure Act
( APA ) Argument

The following excerpt about breath testing is taken from a portion of Chapter 5 from The Georgia DUI Defense Trial Practice Manual, © 1996 William C. Head. The reader should understand that the material provided is in no way comprehensive, but outlines certain legal attacks on breath testing. Historically, many breath tests (and some refusals) have been excluded prior to trial on other grounds other than the ones mentioned in the excerpt.

5.1.2.d. The Administrative Procedure Act ( APA ) Argument

In July of 1994, the GACDL (Georgia Association of Criminal Defense Lawyers) authorized several members of the organization to set up a "Watchdog" committee for purposes of overseeing the state's implementation of the Intoxilyzer 5000. Notification was given to the GBI that no public notice [and other requirements of the Administrative Procedure Act (APA)] had been complied with by the GBI.

A hurried notice was sent out by the GBI Division of the Forensic Science on or about August 1, 1994, setting up a public hearing on September 1, 1994. This hearing is specifically required by the APA. O.C.G.A. $ 50-13-4, and at least 30 days' notice are required.

At the hearing on September 1, 1994, numerous members of the GACDL Watchdog Committee were present in order to question Mr. James Panter of the GBI about the proposed new machine. [Excerpts from this important meeting are included in Appendix F]. Segments of the transcript reveal GACDL members, including the author, advising Mr. Panter that the APA was still not being complied with in the GBI's approval process.

Despite our admonitions, a meeting of the state Public Safety Board was set for November 2, 1994, at which time (over strenuous objections and warnings of procedural deficiencies by the GACDL Watchdog Members), the machine was unanimously approved by the Public Safety Board for implementation in Georgia. The revised regulations went into effect November 29, 1994.

Arguably, no Intoxilyzer 5000 test made before November 29, 1994 is valid due to lack of proper rules for its use as a chemical sobriety test. This is based upon the strictures of the APA requiring notice, hearings, review by the Public Safety Board and submittal to Legislative Counsel of the Georgia General Assembly.

Court challenges to the sufficiency of the amendment to Georgia's Implied Consent Rules (GBI Rule 92-3-.06) began in early 1995. Judges in Athens, Decatur and other cities began ruling that the state had failed to comply with the APA. See Form 5.12 for copies of two court orders.

It soon became apparent that the hurried notices failed to cite the statutory authority for the Implied Consent Rule change. Under O.C.G.A. $ 50-13-4, this is a fatal defect. Hence, all Intoxilyzer 5000 tests run on the Intoxilyzer 5000 through arrests made December 7, 1995, are probably invalid and inadmissible in court.

The "December 7, 1995" date is used because the GBI started anew on the approval process for the Intoxilyzer 5000 in late 1995, conducting public hearings in November of 1995, and having a new "rubber stamp" Public Safety Board meeting at Unicoi, Georgia on November 15, 1995, in order to ratify the new changes. The ratified rules change was sent to the Office of Legislative Counsel on November 18, 1995, and, on December 8, 1995, the change became official. The effective date is December 8, 1995. Additional challenges will arise from the latest "approval" process if all APA steps were not strictly followed. See Form 5.13 for a copy of the old and the new documents submitted by the GBI seeking approval of the 5000.