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3. BREATH TESTS – BREATH SAMPLES Thrasher v. State, 292 Ga.App. 566, 666 S.E.2d 28 (June 18, 2008). DUI conviction affirmed; trial court properly admitted breath test results. Defendant gave one breath sample. At trial defendant contended that he was unable to give a second sample due to asthma, and that the first test result should be excluded because his failure to give a second was not due to refusal. Held, trial court properly admitted results of the first sample, regardless of defendant’s reasons for failing to give a second sample. Based in part on Davis (July 9, 2007), and Chamberlain (October 17, 2000), both below . Accord, Smith v. State , 325 Ga.App. 405, 750 S.E.2d 758 (November 15, 2013). Davis v. State, 286 Ga.App. 443, 649 S.E.2d 568 (July 9, 2007). DUI and related convictions affirmed. Defendant gave one breath sample on intoxilyzer, then broke down crying and couldn’t give the second sample before the machine timed out. She did, however, manage to give another sample eleven minutes after the first test, which rendered an identical result. Held, the two samples were “sequential” as required by OCGA § 40-6-392(a)(1)(B), notwithstanding the time and the failed attempt in between successful samples. “Here, the State complied with the statute in that it requested sequential breath samples, took two sequential series of tests, and obtained test results on two adequate breath samples from that series of tests. The samples were ‘sequential’ in that they were taken as part of a series [of] tests, with one adequate sample taken following the other. [fn] We decline to hold that ‘sequential,’ as used here, also means without any gaps in the procedure due to the test taker’s inability to give an adequate breath sample. It would make little sense to hold that the results of either of these tests are inadmissible due to the defendant’s inability to immediately give a second breath sample when a complete refusal or failure to take a second test does not affect the admissibility of the results of any prior samples.” “The fact of such an intervening failed breath test goes to the weight, not the admissibility, of the test results.” Chamberlain v. State, 246 Ga.App. 423, 541 S.E.2d 64 (October 17, 2000). After doing field sobriety tests, the officer determined that the defendant’s performance was consistent with that of someone under the influence of alcohol, and arrested her. He read her the implied consent notice and took her to jail for further testing. The officer told the defendant that she was to provide two breath samples that would comprise one test. She provided the first sample, the second time she did not blow hard enough to produce a sufficient sample. At this time she requested a blood test. The officers denied her request stating that she could not have a blood test until she provided the second breath sample. Held, after providing a breath sample sufficient to cause the breath testing instrument to produce a printed alcohol concentration analysis on the state administered test, the defendant was entitled to the blood test that she requested. The unjustified failure to provide this test is a violation of the statute and precludes the state from using evidence regarding the state administered test. See also State v. Schmidt , 256 Ga.App. 749, 569 S.E.2d 630 (July 26, 2002) (holding that trial court properly suppressed results of defendant’s breath test result where he blew once into Intox, refused to blow again, asked for and did not receive independent blood test). Horne v. State, 237 Ga.App. 844, 517 S.E.2d 74 (April 29, 1999). DUI conviction affirmed. Trial court properly admitted evidence of “both of the sequential test results from the Intoxilyzer 5000 breath test into evidence. OCGA § 40-6-392(a)(1)(B) provides, in pertinent part: ‘In all cases where the arrest is made on or after January 1, 1995, and the state selects breath testing, two sequential breath samples shall be requested for the testing of alcohol concentration. For either or both of these sequential samples to be admissible in the state's ... case-in-chief, the readings shall not differ from each other by an alcohol concentration of greater than 0.020 grams and the lower of the two results shall be determinative for accusation and indictment purposes and administrative license suspension purposes.’ (Emphasis supplied.) Thus, the statute, itself, clearly contemplates the admission of both sequential test results, and the trial court did not err.” Accord, State v. Kruzel , 261 Ga.App. 90, 581 S.E.2d 711 (May 1, 2003). Davis v. State, 237 Ga.App. 817, 517 S.E.2d 87 (April 29, 1999). Trial court erred in denying defendant’s motion in limine; officer was not authorized to obtain a third breath test after first two tests gave invalid results with variations of more than 0.020 grams. (Note, a “test” consists of two sequential breath samples.) “OCGA § 40-6- 392(a)(1)(B) provides in pertinent part as follows: ‘No more than two sequential series of a total of two adequate breath samples each shall be requested by the state.’ … The trial court denied Davis’ motion to exclude the results of the breath test by finding that the first two tests, which were outside the parameters, did not produce adequate breath samples. This ruling was erroneous. The statute plainly defines an adequate breath sample as ‘a breath sample sufficient to cause the breath-testing instrument to produce a printed alcohol concentration analysis.’ In this case it is undisputed that both the first and second tests administered to Davis produced printed alcohol concentration analyses.” Nothing would appear to prohibit the officer in this situation from seeking a blood or urine test.