                              FOURTH DIVISION
                                DOYLE, P. J.,
                           MILLER and DILLARD, JJ.

                   NOTICE: Motions for reconsideration must be
                   physically received in our clerk’s office within ten
                   days of the date of decision to be deemed timely filed.
                              http://www.gaappeals.us/rules/


                                                                 November 18, 2014




In the Court of Appeals of Georgia
 A14A1002. THE STATE v. PADGETT.                                             DO-037 C

      DOYLE, Presiding Judge.

      The State appeals from the grant of a motion to suppress filed by James Daniel

Padgett after he was indicted for allegedly driving under the influence of alcohol

(“DUI”).1 The State contends that the trial court erred by excluding the results of a

blood test performed by a hospital because the chemical analysis of the blood failed

to comply with OCGA § 40-6-392 (a) (1) (A). For the reasons that follow, we affirm.

      There are

      three fundamental principles which must be followed when conducting
      an appellate review of a trial court’s ruling on a motion to suppress.
      First, when a motion to suppress is heard by the trial judge, that judge


      1
         See OCGA § 40-6-391 (a) (1) (less safe to drive) & 40-6-391 (a) (5) (per se
illegal alcohol concentration).
      sits as the trier of facts. The trial judge hears the evidence, and his
      findings based upon conflicting evidence are analogous to the verdict of
      a jury and should not be disturbed by a reviewing court if there is any
      evidence to support them. Second, the trial court’s decision with regard
      to questions of fact and credibility must be accepted unless clearly
      erroneous. Third, the reviewing court must construe the evidence most
      favorably to the upholding of the trial court’s findings and judgment.
      These principles apply equally whether the trial court ruled in favor of
      the State or the defendant.2


To the extent that “the evidence at a suppression hearing is uncontroverted and the

credibility of witnesses is not in question, we conduct a de novo review of the trial

court’s application of the law to the undisputed facts.”3

      For purposes of the motion to suppress, the parties do not dispute that an

ambulance took Padgett to a hospital for medical treatment after an officer responded

to the scene of his motorcycle wreck. Once the officer arrived at the hospital, based

on his observations of Padgett at the scene, including an alco-sensor test, the officer

administered an implied consent warning and requested that Padgett submit to a blood

      2
         (Citations and punctuation omitted.) Brown v. State, 293 Ga. 787, 802-803
(3) (b) (2) (750 SE2d 148) (2013), quoting Miller v. State, 288 Ga. 286, 286-287 (702
SE2d 888) (2010).
      3
         Jones v. State, 291 Ga. 35, 36-37 (1) (727 SE2d 456) (2012), citing Vansant
v. State, 264 Ga. 319, 320 (1) (443 SE2d 474) (1994).

                                          2
test, and Padgett consented. At the officer’s direction, Padgett’s blood was drawn by

a registered nurse at the hospital, but the officer did not retain the sample for testing

or request that it be sent to the State crime lab. Instead, the blood sample was tested

by the hospital, and the result was entered into Padgett’s medical record. Thereafter,

the officer obtained a search warrant for Padgett’s medical record, and Padgett moved

to suppress the result of the blood test.

       The trial court received letter briefs on the admissibility of the test result, and

after initially denying Padgett’s motion, the court convened two re-hearings to

address a factual discrepancy that had arisen.4 With the facts clarified, the State

conceded that the hospital’s analysis of Padgett’s blood sample did not comply with

the requirements of OCGA § 40-6-392 (a) (1) (A), but the State argued that the test

was otherwise admissible. The trial court granted the motion to suppress, giving rise

to this appeal by the State.




       4
        When first briefing the issue, Padgett’s counsel was operating under the
assumption that the officer had lost the initial blood sample, and the medical record
did not reflect the particular blood test requested by the officer. The parties later
learned that the officer never lost the sample and never attempted to submit it for
State-administered testing. Instead, he intentionally left it to be tested by the hospital,
and that result was entered into Padgett’s medical record.

                                            3
      1. The trial court based its ruling on OCGA § 40-6-392 (a), which provides as

follows, in relevant part:

               (a) Upon the trial of any civil or criminal action or proceeding
      arising out of acts alleged to have been committed by any person in
      violation of Code Section 40-6-391, evidence of the amount of alcohol
      or drug in a person’s blood, urine, breath, or other bodily substance at
      the alleged time, as determined by a chemical analysis of the person’s
      blood, urine, breath, or other bodily substance shall be admissible.
      Where such a chemical test is made, the following provisions shall
      apply:


               (1) (A) 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 on
      a machine which was operated with all its electronic and operating
      components prescribed by its manufacturer properly attached and in
      good working order 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
      shall approve satisfactory techniques or methods to ascertain the
      qualifications and competence of individuals to conduct analyses and to
      issue permits, along with requirements for properly operating and
      maintaining any testing instruments, and to issue certificates certifying
      that instruments have met those requirements, which certificates and



                                            4
      permits shall be subject to termination or revocation at the discretion of
      the Division of Forensic Sciences.


      In Perano v. State,5 the Supreme Court of Georgia explained the purpose of the

statute: “This [C]ode section provides for the procedures to be used where the [S]tate

administers the test.”6 Thus, if a State-administered test complies with the statutory

requirements in OCGA § 40-6-392 (a), the test results “shall be admissible,”7 and

conversely, if the State-administered test does not comply with the statute, it is

inadmissible.8 The question in this case is whether these statutory requirements apply

to a blood test requested by a law enforcement officer but analyzed by a hospital. We

conclude that they do.




      5
          250 Ga. 704 (300 SE2d 668) (1983).
      6
        (Emphasis supplied.) Id. at 707. See also State v. Carter, 292 Ga. App. 322,
323 (665 SE2d 14) (2008) (“This Code section . . . provides that for the
state-administered test to be considered valid, it must be conducted” in accordance
with the statutory requirements.) (emphasis supplied); Dixon v. State, 227 Ga. App.
533, 534 (2) (489 SE2d 532) (1997) (“These procedures apply only to
State-administered tests . . . .”).
      7
          OCGA § 40-6-392 (a).
      8
          See Carter, 292 Ga. App. at 323.

                                             5
      Georgia cases have consistently characterized tests requested by an officer as

“State-administered.” For example, in Oldham v. State,9 this Court explained that “the

procedures outlined in [OCGA § 40-6-392] are limited to those tests performed at the

request or direction of a law enforcement officer. When an alcohol level

concentration test is performed at the request or direction of a law enforcement officer

and complies with the dictates of that statute, it is admissible.”10 On the other hand,

the Court explained, some other situations present a scenario where a blood test is not

done at the direction of a law enforcement officer (such as during medical treatment),

and “[t]hose tests are not subject to the dictates of OCGA § 40-6-392[, so] the party

seeking to admit the test results must satisfy the court that the results are admissible

pursuant to the rules of evidence.”11

      Here, it is undisputed that the blood analysis at issue was performed at the

request of a law enforcement officer for the purpose of a DUI investigation pursuant



      9
          205 Ga. App. 268 (422 SE2d 38) (1992).
      10
           (Citation omitted; emphasis supplied.) Id. at 269 (1).
      11
         Id. See also Daniel v. State, 298 Ga. App. 245 (679 SE2d 811) (2009)
(addressing the admissibility of two tests, one non-State administered test done by the
hospital for medical treatment, and one State-administered test requested at the
hospital by an officer two hours later).

                                            6
to consent gained after an implied consent warning. Thus, the test was State-

administered for purposes of OCGA § 40-6-392 (a), and the State had the burden of

showing that it met the statutory requirements, which it concedes it could not do.12

      2. The State also contends that even if the test did not comply with statutory

requirements, it was otherwise admissible through the inevitable discovery doctrine

because the officer later obtained a warrant for Padgett’s medical record, which

contained the test result. “[T]he . . . inevitable discovery doctrine allows admission

of evidence that was discovered as a result of police error or misconduct if the State

establishes by a preponderance of the evidence that the information ultimately or

inevitably would have been discovered by lawful means, without reference to the

police error or misconduct.”13 Here, we discern no intentional misconduct on the part

of the police, but it remains true that the blood test at issue did not meet the statutory

requirements, so this constituted police error. Even if the police were entitled to

discover the result of the blood test by lawfully obtaining a warrant for Padgett’s



      12
          See Dixon v. State, 227 Ga. App. 533, 534 (2) (489 SE2d 532) (1997)
(drawing a distinction between a test requested by an officer and a test performed by
a hospital during medical treatment). See also Perano, 250 Ga. at 708 (referring to a
test performed at a hospital at the request of an officer as “the [S]tate’s test.”).
      13
           State v. Nesbitt, 305 Ga. App. 28, 36 (2) (c) (699 SE2d 368) (2010).

                                            7
medical record, this did not change the fact that the result in the medical record was

from a procedure that failed to comply with OCGA § 40-6-392 (a), which governs the

admissibility of State-administered blood alcohol tests. Thus, the presence of a

warrant did not cure the improper testing procedure that occurred in this case.

Accordingly, the inevitable discovery doctrine does not provide an avenue for

admission.

      Judgment affirmed. Miller and Dillard, JJ., concur.




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