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Berkow v. State

Police officer's failure to watch defendant continuously for 20 consecutive minutes prior to giving him a breath test did not make the test results inadmissible.

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Oliver C. Berkow was found guilty of three counts of driving a vehicle while under the influence of alcohol: 1 driving while under the influence of alcohol to the extent that it was less safe for him to do so in violation of OCGA § 40-6-391 a 1; 2 driving while under the age of 21 while having an alcohol concentration of 0.02 or more in violation of OCGA § 40-6-391 k; and 3 driving while having an alcohol concentration of 0.10 grams or more in violation of OCGA § 40-6-391 a 5.1

The convictions were supported by evidence of a state-administered breath test which showed that, less than three hours after he was driving, Berkow had an alcohol concentration of 0.102 grams. Berkow claims that the test was not performed according to methods approved by the Division of Forensic Sciences DFS of the Georgia Bureau of Investigation GBI, as required by OCGA § 40-6-392 a 1 A, and therefore the trial court erred by denying his motion in limine to exclude the breath test results. Specifically, Berkow claims that the State failed to observe him for a period of 20 minutes prior to the test to insure that, during this time period, he did not regurgitate previously consumed alcohol, thereby contaminating the breath test by leaving alcohol residue in his mouth.

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