We granted a writ of certiorari to the Court of Appeals in Rackoff v. State , 275 Ga. App. 737 621 SE2d 841 2005, to determine 1 whether a person arrested for driving under the influence is entitled to advice of counsel before deciding if he should submit to a breath test; and 2 whether the inspection certificate of the instrument used to conduct the test was testimonial hearsay, and, therefore, inadmissible. We answer these questions in the negative. Rackoff was arrested for DUI and the arresting officer explained his implied consent rights. Before he decided whether to take the State-administered breath test, Rackoff asked the officer if he could use a telephone to consult with an attorney. The officer told Rackoff he would not be permitted to contact an attorney until after he was tested and he was “booked.” Rackoff took the test and the results indicated an unlawful blood-alcohol level.
Prior to trial, Rackoff moved for discharge and acquittal on the ground that he was denied his constitutional right to a speedy trial. He also moved to exclude the results of the breath test on the ground that he was denied the benefit of counsel and to strike the certificate showing that the instrument used to administer the breath test was in good working order. See OCGA § 40-6-392 f. The trial court denied Rackoff’s motions and the Court of Appeals affirmed. In granting certiorari, we posed these questions: 1. Did the Court of Appeals err in concluding that Rackoff was not entitled to the advice of counsel when confronted with a decision as to whether to submit to the breath test, and therefore, that the trial court did not err by refusing to exclude the breath test on the ground that Rackoff was denied his right to an attorney 2. Did the Court of Appeals err in holding that the inspection certificate of the instrument used to conduct the breath test on Rackoff, which was prepared under OCGA § 40-6-392 f, was not testimonial, and therefore, was not inadmissible under Crawford v. Washington , 541 U. S. 36 124 SC 1354, 158 LE2d 177 2004. 1. Our courts have consistently ruled that an individual is not entitled to the advice of counsel when he is asked to submit to a breath test under the Implied Consent Law. See, e.g., State v. Boger , 253 Ga. App. 412 1 559 SE2d 176 2002; Bowman v. Palmour , 209 Ga. App. 270, 271 2 433 SE2d 380 1993; Rawl v. State , 192 Ga. App. 57, 58 4 383 SE2d 903 1989. The first case to examine the issue was Davis v. Pope , 128 Ga. App. 791 197 SE2d 861 1973.
