State v. Bowen

The suppression of breath test results stemming from a boating under the influence charge was proper since the GBI violated the Administrative Procedure Act by failing to publish its procedures for granting officers permits to perform breath tests.

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Reed Stephens Bowen was arrested for boating under the influence. See OCGA § 52-7-12 a 4. Department of Natural Resources rangers gave Bowen his implied consent notice, and then a breath test. Bowen moved to suppress the results of the test. The trial court found that the Georgia Bureau of Investigation had not published its procedures for granting permits for the administration of breath, blood, and urine tests under the BUI provisions of the Georgia Boat Safety Act. See OCGA § 52-7-12. Holding this failure to publish to be a violation of the Administrative Procedure Act the “APA”, OCGA § 50-13-1 through 50-13-44, the trial court granted Bowen’s motion to suppress. On appeal, the State argues that the GBI’s procedures for awarding permits to breath, urine, or blood test operators are not subject to APA requirements. We disagree and affirm.

The trial court’s findings as to disputed facts in a ruling on a motion to suppress will be upheld absent clear error; however, “where the evidence is uncontroverted and no question regarding the credibility of the witnesses is presented, the trial court’s application of the law to undisputed facts is subject to de novo appellate review. Cits.” Vansant v. State, 264 Ga. 319, 320 1 443 SE2d 474 1994. The facts here are not in dispute. The State’s sole contention is that, pursuant to OCGA § 35-3-155, the GBI is not bound by provisions of the APA requiring it to publish its procedures for licensing individuals to administer breath tests under the BUI law. See OCGA § 50-13-3b. The State relies on an exemption from the APA for certain technical matters:

State v. Bowen

The suppression of breath test results stemming from a boating under the influence charge was proper since the GBI violated the Administrative Procedure Act by failing to publish its procedures for granting officers permits to perform breath tests.

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