THE STATE v. BOWEN, 245 Ga. App. 159

Smith, Presiding Judge. Reed Stephens Bowen was arrested for boating under the influence (“BUI”). 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 (“GBI”) 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 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 § 50-13-3 (b).

The State relies on an exemption from the APA for certain technical matters: Unless otherwise specifically provided by law, technical, scientific, and similar processes, procedures, guidelines, standards, and methods for the collection, preservation, or testing of evidence adopted by the [Division of Forensic Sciences of the Georgia Bureau of Investigation] shall not be subject to the . . . Administrative Procedure Act. (Punctuation omitted.) OCGA § 35-3-155.

The State argues that the GBI’s procedures for awarding permits to breath test operators are among the types of procedures, guidelines, or methods encompassed by the exemption. The State recently made this same argument successfully to another panel of this court. In State v. Corriher, 243 Ga. App. 648 (533 SE2d 800) (2000), this court agreed with the State, holding that the procedure by which an officer obtains a certificate to operate an Intoximeter 5000 is such a “technical” procedure and is encompassed within the exemption provided by OCGA § 35-3-155. We cannot agree with this conclusion.

It is well established that in the

interpretation of statutes, the primary rule is to discern the intention of the General Assembly. OCGA § 1-3-1. And the language used by the General Assembly in enacting OCGA § 52-7-12 weighs heavily against such a conclusion.

OCGA § 52-7-12 (c) (1) creates the standard for blood, urine, and breath tests that are expressly admissible in a BUI case: Chemical analysis of the person’s blood, urine, breath, or other bodily substance, to be considered valid under this Code section, shall have been performed according to methods approved by the Division of Forensic Sciences of the Georgia Bureau of Investigation and by an individual possessing a valid permit issued by the Division of Forensic Sciences for this purpose.

The Division of Forensic Sciences of the Georgia Bureau of Investigation is authorized to approve satisfactory techniques or methods to ascertain the qualifications and competence of individuals to conduct analyses and to issue permits, which shall be subject to termination or revocation at the discretion of the Division of Forensic Sciences. The GBI’s authorization to establish the permitting requirements for test operators is contained in the second sentence of the statute and is completely distinct from its authorization to develop the methodology for performing the applicable chemical analyses.

This does not lend itself to a finding that the GBI’s standards for issuing permits to qualified individuals are part of a technical or scientific method for collecting, preserving, or testing evidence. We are also influenced by the GBI’s treatment of similar permitting requirements under the DUI law. OCGA § 40-6-392 (a) (1) (A). The GBI has published detailed regulations for issuing operator permits for breath, blood, and urine analyses in DUI cases. Ga. Admin. Code Rules 92-3-.01 through 92-3-.05. Its rule regarding the methods for conducting the actual tests is separate. See Ga. Admin. Code Rule 92-3-.06.

The State’s reliance on Helmeci v. State, 230 Ga. App. 866 (498 SE2d 326) (1998) is misplaced. In Helmed, we rejected the defendant’s argument that because the GBI had not published regulations governing the equipment and procedures for conducting urinalysis, his urine tests were inadmissible. The methodology for conducting urinalysis is squarely within the type of technical procedure covered by OCGA § 35-3-155 and is distinct from the rules for issuing a permit to conduct such a test.

The State encourages us in this case to interpret the technical exemption from the APA broadly enough to include these permitting requirements, as was done in Corriher. But we have previously acknowledged that the legislative intent of the APA was to provide “uniformity in administrative procedures,” and we have held that “exclusions from the APA should be as few as possible and should not occur except for cause.” (Punctuation omitted.) Dept. of Ed. v. Kitchens, 193 Ga. App. 229, 230 (2) (387 SE2d 579) (1989).

Mindful that we have not chosen to interpret broadly exclusions from the APA, we decline to give OCGA § 35-3-155 the

interpretation urged by the State and adopted in Corriher. We agree with the trial court, and we hold that the GBI’s rules for issuing permits under OCGA § 52-7-12 are subject to APA publication requirements and are not exempted by OCGA § 35-3-155, thereby overruling State v. Corriher, supra. The State does not contend that the GBI complied with the APA in promulgating its procedures for issuing permits to conduct breath tests, nor does the State contend the test results might be admissible other than under OCGA § 52-7-12 (c).

It follows that the ranger who administered Bowen’s breath test did not have a valid permit to do so under the BUI law and that the State cannot depend on OCGA § 52-7-12 (

c) to establish the admissibility of the test results. Judgment affirmed. Johnson, C. J., Pope, P. J., Miller, Ellington, Phipps and Mikell, JJ., concur. Blackburn, P. J., and Ruffin, J., concur specially. Andrews, P. J., Eldridge and Barnes, JJ., dissent.