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State v. Rackoff

Evidence that the Intoxilyzer 5000 machine may have malfunctioned and was taken out of service five days after defendant's breath test went to the weight of the test results, not their admissibility.

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The State Court of Gwinnett County granted Stewart Daniel Rackoff’s motion to suppress the results of an Intoxilyzer 5000 breath alcohol test in this prosecution for driving under the influence. The trial court granted the motion because the Intoxilyzer machine was taken out of service five days after the breath test and the State presented no evidence that it had been successfully used “after the test performed on the defendant.” Pursuant to OCGA § 5-7-1 a 4, the State appeals from the trial court’s order. Because the trial court erred in granting the motion, we reverse. On appeal from an order granting or denying a motion to suppress, the evidence must be construed most favorably to support the trial court’s ruling. State v. Causey , 246 Ga. App. 829-830 1 540 SE2d 696 2000. “Where the evidence is uncontroverted and no question regarding the credibility of witnesses is presented, the trial court’s application of the law to undisputed facts is subject to de novo appellate review.” Citation and punctuation omitted. Id. at 830 1.

The record reveals the following relevant, undisputed facts. On June 9, 2001, a Duluth, Georgia police officer arrested Rackoff for driving under the influence of alcohol. Within thirty minutes of the arrest, Rackoff submitted to a breath alcohol test on an Intoxilyzer 5000. The officer testified that he was trained and had a permit to operate the machine and had used the machine in question many times in the past.

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