Braswell v. State

Charles K. Braswell was found guilty by a jury on two counts of DUI, violation of the open container law, and underage possession of alcohol. His motion for new trial was denied, and he appeals, asserting two enumerations of error. Finding no merit in either of Braswell’s contentions, we affirm. 1. Braswell first contends the trial court erred in admitting the inspection certificates for the Intoxilyzer 5000, contending they are inadmissible hearsay. As Braswell concedes, this court has ruled to the contrary in Rackoff v. State , 275 Ga. App. 737, 740-741 2 621 SE2d 841 2005. See also Pierce v. State , 278 Ga. App. 162, 165 628 SE2d 235 2006. As Braswell also notes, Rackoff’s petition for certiorari was granted and that case is now pending before the Georgia Supreme Court. But the case before us must be decided by December 1, 2006 Ga. Const. 1983, Art. VI, Sec. IX, Par. II; OCGA § § 15-2-4 b c, 15-3-2, and the Supreme Court will not necessarily have rendered its decision in Rackoff before then. Unless and until the Supreme Court reverses it, this court’s decision in Rackoff is good law.

Moreover, the submission of an inspection certificate is not the only method by which the reliability of the Intoxilyzer 5000 may be proved. In Gidey v. State , 228 Ga. App. 250 491 SE2d 406 1997, we held that “substantial statutory compliance with OCGA § 40-6-392 a 1 A can be established by circumstantial evidence arising from the testimony of the trained and certified individual who operated the machine and performed the test.” Citation and punctuation omitted. Id. at 252 1.