Lumley v. State

The trial court should have excluded a copy of the defendant's intoxilyzer report under the best evidence rule, since the state provided no explanation as to the original's absence.

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Following a bench trial, Derek Lumley was found guilty of driving under the influence to the extent that his blood-alcohol content exceeded the legal limit.1 In his sole enumeration of error, Lumley contends that the trial court erred in admitting into evidence a copy of the intoxilyzer report over his “best evidence” objection. For reasons that follow, we agree and thus reverse. The transcript from the bench trial shows that on January 16, 2005, following a traffic stop, Officer Ronnie Drake administered an intoxilyzer test to Lumley. At trial, the State attempted to admit a copy of the printout from the test. Lumley objected and argued as follows: ” If the document itself is at issue, then . . . the best evidence would call for the document itself and I’m not sure where it is, but in the absence of the document or a valid explanation of where it is, I would object to this document based on the best evidence rule.” The State was unable to explain the absence of the original document. Moreover, the State presented no evidence regarding any effort it made to locate the original. Rather, the prosecutor merely insisted that because it was a photostatic copy, the State was not required to produce the original. Although the trial court apparently was troubled by the State’s inability to explain the absence of the original, it admitted the copy over Lumley’s objection.

Under OCGA § 24-5-4 a, “the best evidence which exists of a writing sought to be proved shall be produced, unless its absence shall be satisfactorily accounted for.” “When a writing is lost, destroyed, or inaccessible, the party who desires to offer the contents of such writing, must account for his inability to produce it despite the exercise of due diligence.”2 Moreover, “merely asserting the loss, without showing diligence in attempting to provide the writing, will not do.”3

Lumley v. State

The trial court should have excluded a copy of the defendant's intoxilyzer report under the best evidence rule, since the state provided no explanation as to the original's absence.

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