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defendant’s argument “that the Division of Forensic Sciences (DFS) of the Georgia Bureau of Investigation (GBI) has not complied with the mandate of OCGA § 40-6-392(a)(1)(A) to provide ‘requirements for properly operating’ the Intoxilyzer 5000.” “In Rowell v. State, 229 Ga.App. 397-398(1)(a) (494 S.E.2d 5) (1997), we ‘rejected the claim that DFS regulations were defective because they did not contain specific procedures to be employed in the operation and calibration of Intoxilyzer 5000 machines.’ [ State v. Carter, 292 Ga.App. 322, 327 (665 S.E.2d 14) (2008)], citing Rowell, supra. In Dougherty v. State, 259 Ga.App. 618 (578 S.E.2d 256) (2003), the defendant similarly argued that his breath test was inadmissible, because ‘the DFS rules and regulations ... do not set forth the testing procedures’ Id. at 621(1)(c), and ‘should contain a more detailed description of the actual procedures used to operate and maintain the Intoxilyzer 5000.’ In Dougherty, in light of the fact that there, as here, the defendant presented no evidence that additional rules were necessary to ensure fair and accurate testing, we held that the techniques and methods approved by the DFS, whatever they are, were sufficient under OCGA § 40-6-392(a)(1)(A). Id. See also [ Palmaka v. State (‘ Palmaka II’ ), 280 Ga.App. 761, 764 (634 S.E.2d 883) (2006)]. We conclude that Dougherty is apposite and controlling under the facts of this case.” State v. Carter, 292 Ga.App. 322, 665 S.E.2d 14 (June 26, 2008). 1. Trial court erred in granting defendant’s motion to suppress intox results; State showed substantial compliance with inspection requirements. GBI rules, admitted in evidence at motion hearing, set the standards for quarterly inspections, including a “difference check” that should result in “a reading between 0.076 and 0.084.” Here the difference check resulted in a reading of 0.074. Inspector nevertheless certified the machine. The trial court therefore ruled that the machine “did not have all its electronic and operating components prescribed by its manufacturer properly attached and in good working order.” Court of Appeals reverses; “any failure of the Intoxilyzer to have passed an operational requirement by registering a 0.074 reading in its analysis of the control solution during the difference check would go to the weight rather than admissibility of the Intoxilyzer test results,” citing Jarriel v. State , 255 Ga.App. 305, 565 S.E.2d 521 (2002) (substantial compliance with inspection requirements makes intox results admissible). 2. Dicta: motion in limine challenging whether intox machine “had all of its electronic and operating components prescribed by its manufacturer properly attached and in good working order … challenged the state to show only that the Intoxilyzer 5000 had been approved by the DFS, that Officer Hester had a valid permit for operating the device, and that the test was performed in accordance with methods approved by the DFS.” It did not, however, put the State on notice that the defendant would challenge the method of inspection and whether the machine was properly certified for use. Stewart v. State, 280 Ga.App. 366, 634 S.E.2d 141 (July 10, 2006). Intoxilyzer 5000 results were admissible, regardless of defense “expert’s testimony that an officer administering the test can visually observe the test readings and manipulate them by giving verbal instructions to the test subject to ensure that the two breath samples match within the .02 agreement required by OCGA § 40-6-392.” Based on Lattarulo v. State, 261 Ga. 124, 126-127(3) (401 S.E.2d 516) (1991) (“no procedure is infallible. An accused may always introduce evidence of the possibility of error or circumstances that might have caused the machine to malfunction. Such evidence would relate to the weight rather than the admissibility of breathalyzer results.”). Accord, Laseter v. State , 294 Ga.App. 12, 668 S.E.2d 495 (October 9, 2008). Whittaker v. State, 279 Ga.App. 148, 630 S.E.2d 560 (April 12, 2006). “‘[T]he fact that a testing procedure has some margin for error or may give an erroneous result under certain circumstances relates to the weight, rather than the admissibility, of the test results.’ Gutierrez v. State, 228 Ga.App. 458, 459(1) (491 S.E.2d 898) (1997).” Accord, Stewart (July 10, 2006), above. Totino v. State, 266 Ga.App. 265, 596 S.E.2d 749 (March 15, 2004). “‘[A]n Intoxilyzer’s margin of error relates to the weight given to the test results rather than to their admissibility [,] ... [and] the results are direct evidence of guilt.’ [Cit.] In other words, the evidence supporting a per se charge is not insufficient simply because the Intoxilyzer’s margin of error brings a breathalyzer test result below Georgia’s legal limit for blood alcohol content. [Cit.]” Defendant was thus not entitled to directed verdict where legal limit was .010 and test result was .011. Johnson v. State, 261 Ga.App. 633, 583 S.E.2d 489 (June 12, 2003). Defense presented retired Florida police officer as expert on Intoxilyzer 5000. “He testified that, in his opinion, the acceptable margin of error for the Intoxilyzer 5000 is 0.02 grams, even though the manufacturer of the Intoxilyzer guarantees its accuracy to a plus or minus 0.003 blood alcohol concentration, and Georgia law enforcement officers are trained that the margin of error is 0.01.” Trial court properly allowed prosecutor to ask on cross whether he “would ever charge a person with DUI when his or her blood alcohol level was 0.08 or higher.” The elicited testimony “showed that the state of Florida, for whom the expert had worked, prosecuted DUI cases based on the assumption that this machine has a margin of error significantly lower than
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