☢ test - Í

Lumley v. State, 280 Ga.App. 82, 633 S.E.2d 413 (June 22, 2006). Defendant’s DUI conviction reversed; trial court erred in denying defendant’s best evidence objection to the copy of the intoxilyzer report tendered into evidence. “Under OCGA § 24-5-4(a), ‘[t]he best evidence which exists of a writing sought to be proved shall be produced, unless its absence shall be satisfactorily accounted for.’ ‘When a writing is lost, destroyed, or inaccessible, the party who desires to offer the contents of such writing, must account for his inability to produce it despite the exercise of due diligence.’ Eley v. State, 266 Ga.App. 45, 49(4) (596 S.E.2d 660) (2004). Moreover, ‘[m]erely asserting the loss, without showing diligence in attempting to provide the writing, will not do.’ (Punctuation omitted.) Id. Here, the State provided no evidence to explain the absence of the original intoxilyzer printout. And the prosecutor apparently made no effort – much less a diligent one – to ascertain the original’s whereabouts. Under these circumstances, the trial court erred in admitting the copy of the report over objection. See Garrett v. State, 156 Ga.App. 33(2) (274 S.E.2d 80) (1980) (‘Since there is no evidence whatsoever accounting for the absence of the original ... the trial court erred in admitting [the photostatic copy].’). And, other than the copy of the report, there was no competent evidence admitted to establish Lumley’s blood-alcohol content. [Cit.]” Worthman v. State, 266 Ga.App. 208, 596 S.E.2d 643 (February 23, 2004). Defendant contends the evidence does not show that his breath test was taken within three hours of driving. “[S]ince Worthman was convicted only of driving under the influence to the extent that it was less safe for him to drive, and not for driving under the influence while having a specific blood-alcohol concentration, the admission of the results of his state-administered breath test, even if erroneous, resulted in no harm.” Distinguished from Johnson v. State , 261 Ga. App 633, 583 S.E.2d 489 (2003), where jury was charged “regarding the inference to be drawn from the state-administered blood test” although defendant’s implied consent rights were violated. Dougherty v. State, 259 Ga.App. 618, 578 S.E.2d 256 (February 12, 2003). “The admissibility of a breath test does not depend on exact compliance with the DFS regulations. Test results are admissible if the State shows substantial compliance with those rules.” Intoxilyzer 5000 results are not inadmissible for alleged failure of the Division of Forensic Sciences to promulgate “satisfactory techniques and methods for ... chemical testing” under OCGA § 40-6-392(a)(1)(A). “Defendant has provided no evidence that additional rules are necessary to ensure fair and accurate testing, and we find the techniques and methods approved by the DFS sufficient under OCGA § 40-6-392(a)(1)(A). We further note that OCGA § 40-6-392(a)(1)(A) provides only for the admissibility of the test results. A defendant remains free to challenge the weight and credibility of that evidence before the jury.” Accord, Palmaka v. State , 280 Ga.App. 761, 634 S.E.2d 883 (July 27, 2006) (Division of Forensic Sciences rule 12(b), “which provides that ‘administrative, procedural, and/or clerical steps performed in conducting a test shall not constitute a part of the approved method of analysis,’” is not unconstitutional, citing Dougherty ); Laseter v. State , 294 Ga.App. 12, 668 S.E.2d 495 (October 9, 2008) (following both Palmaka and Dougherty ). Scara v. State, 259 Ga.App. 510, 577 S.E.2d 796 (January 15, 2003). State need not offer proof of what methods of chemical testing are approved by the Division of Forensic Sciences. “These rules are automatically deemed part of the record pursuant to OCGA § 50-13-8, which requires courts to take judicial notice of any regulation promulgated in accordance with the APA without the necessity of an evidentiary proffer.” Officer’s testimony that the methods she used were approved, and that she was certified to perform the test, along with intox printout showing officer’s permit number and self-diagnostic test results, is sufficient basis for admissibility of test results. Moore v. State, 258 Ga.App. 293, 574 S.E.2d 372 (November 7, 2002). “[T]he DUI statute does not require the driver’s blood to be tested within three hours of his driving…. [The] evidence was sufficient to authorize the jury to find that, even if the test was not performed until three hours and five minutes after the collision, Moore had a blood alcohol concentration of .10 grams percent or more during the three hour period after he ceased driving or exercising physical control of the vehicle.” Evidence included toxicologist on alcohol absorption and elimination rates. Lockett v. State, 257 Ga.App. 412, 571 S.E.2d 192 (September 17, 2002). Intoxilyzer results rendered in terms of “alcohol concentration” is synonymous with “percent ... by weight of alcohol,” as expressed in OCGA § 40-6-391(i). Sagenich v. State, 255 Ga.App. 663, 566 S.E.2d 327 (May 22, 2002). Sending the implied consent warning card out with the jury does not violate the continuing witness rule. “‘Documents that are prohibited by the “continuing witness rule” from going out with the jury include answers to written interrogatories, written dying declarations, and signed