O.C.G.A.

O.C.G.A. § 35-3-155 (2019)

Application of Administrative Procedure Act

✓ O.C.G.A. — 2019 edition (Public.Resource.Org Release 73)

Code text and O.C.G.A. statutory annotations on this page reflect the 2019 Official Code of Georgia Annotated (Public.Resource.Org Release 73, 2019-08-21; public domain per Georgia v. Public.Resource.Org, 2020). The Syfert case-law annotations in Notes of Decisions, below, are current.

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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 shall not be subject to the provisions of Chapter 13 of Title 50, the ‘‘Georgia Administrative Procedure Act.’’

History

Code 1981, § 35-3-155, enacted by Ga. L. 1997, p. 1421, § 3.

Annotations

JUDICIAL DECISIONS Applicability to case arising before effective date of section. - O.C.G.A. § 35-3-155, which became effective May 1, 1997, was applicable to a case in which the traffic accident occurred in 1995, but the challenge to the section came before the court after May 1, 1997. Helmeci v. State, 230 Ga. App. 866, 498 S.E.2d 326 (1998); Love v. State, 271 Ga. 398, 517 S.E.2d 53 (1999). Scope of section. - Exclusion from the Administrative Procedure Act requirements for technical standards and procedures for the collection and testing of evidence by O.C.G.A. § 35-3-155 includes the procedure by which an officer obtains a Division of Forensic Sciences certificate to operate an Intoximeter 5000. State v.

Corriher, 243 Ga. App. 648, 533 S.E.2d 800 (2000). Georgia Bureau of Investigation’s rules. - Forensic Sciences Division of the Georgia Bureau of Investigation is exempt under O.C.G.A. § 35-3-155 from the requirement of O.C.G.A. § 50-13-3(b) that the division publish the division’s rules for granting permits for the administration of breath, blood, and urine tests. State v. Bowen, 274 Ga. 1, 547 S.E.2d 286 (2001), reversing State v. Bowen, 245 Ga. App. 159, 537 S.E.2d 417 (2000). Cited in Mowery v. State, 234 Ga. App. 801, 507 S.E.2d 821 (1998); Berkow v. State, 243 Ga. App. 698, 534 S.E.2d 433 (2000).

ARTICLE 6A DNA SAMPLING, COLLECTION, AND ANALYSIS Code Commission notes. - Pursuant to Code Section 28-9-3, in 2011, the amendment of this article by Ga. L. 2011, p. 99, § 50/HB 24, was treated as repealed and superseded by Ga. L. 2011, p. 264, § 3-1/SB 80, due to irreconcilable conflict. See County of Butts v. Strahan, 151 Ga. 417 (1921); Keener v. McDougall, 232 Ga. 273 (1974).

Editor’s notes. - Ga. L. 2011, p. 264, § 1-1/SB 80, not codified by the General Assembly, provides that: ‘‘This Act shall be known and may be cited as the ‘Johnia Berry Act.’ ’’ Ga. L. 2011, p. 264, § 3-1/SB 80, effective January 1, 2013, repealed the Code sections formerly codified at this article and enacted the current article. The for-

T.35, C.3, A.6A GEORGIA BUREAU OF INVESTIGATION mer article consisted of Code Sections 35-3-160 through 35-3-165, relating to DNA analysis upon conviction of certain sex offenses, and was based on Code 1981, §§ 24-4-60 - 24-4-65, enacted by Ga. L. 1992, p. 2034, § 1; Ga. L. 2000, p. 1075, §§ 1-5; Ga. L. 2004, p. 485, § 1; Ga. L. 2005, p. 60, § 24/HB 95; Ga. L. 2007, p. 408, § 1/HB 314; Ga. L. 2008, p. 252, § 1/SB 430; Ga. L. 2011, p. 99, § 50/HB 24; Code 1981, §§ 35-3-160 - 35-3-165, as redesignated by Ga. L. 2011, p. 264, § 2-1/SB 80. Law reviews. - For article, ‘‘From the Crime Scene to the Courtroom: The Future of Forensic Science Reform: The First Amendment Case for Public Access to Se-

cret Algorithms Used in Criminal Trials,’’ see 34 Ga. St. U. L. Rev. 915 (2018). For article, ‘‘From the Crime Scene to the Courtroom: The Future of Forensic Science Reform: Three Transformative Ideals to Build a Better Crime Lab,’’ see 34 Ga. St. U. L. Rev. 1007 (2018). For article, ‘‘From the Crime Scene to the Courtroom: The Future of Forensic Science Reform: Symposium Keynote Address: Uncovering Forensic Laws: An Outside Perspective,’’ see 34 Ga. St. U. L. Rev. 1221 (2018). For comment, ‘‘DNA Collection Acts and the Fourth Amendment: A Call for Legislative Reform in Georgia to Implement Collection of Arrestees’ DNA,’’ see 32 Ga. St. U. L. Rev. 513 (2016).

RESEARCH REFERENCES Am. Jur. Proof of Facts. - Qualifying Child Witness to Testify, 35 POF2d 665. Hair Analysis, 38 POF2d 377.

Foundation for DNA Fingerprint Evidence, 8 POF3d 749.

Notes of Decisions

Cited in 9 cases, 1998–2001 · leading case: State v. Bowen, 547 S.E.2d 286 (Ga. 2001).

Sort: Relevance Newest Treatment

State v. Bowen, 547 S.E.2d 286 (Ga. 2001). · cites it 24× “We granted the State’s petition for writ of certiorari and reverse, holding that the division is exempted under OCGA § 35-3-155 from the publishing requirement of the APA.”

Love v. State, 517 S.E.2d 53 (Ga. 1999). · cites it 6× “During its 1997 legislative session, the Georgia General Assembly passed the Forensic Sciences Act, which made the APA inapplicable to the methods of evidence-testing adopted by the GBI’s Division of Forensic Sciences.”

Helmeci v. State, 498 S.E.2d 326 (Ga. Ct. App. 1998). · cites it 6× “However, effective May 1, 1997, the legislature enacted OCGA § 35-3-155 as part of a comprehensive overhaul of the statutes dealing with the DFS.”

Price v. State, 498 S.E.2d 262 (Ga. 1998). · cites it 2× “Last year, the legislature enacted O.C.G.A. § 35-3-155, which expressly provides that the Division of Forensic Sciences need not seek approval of testing methods and procedures through the Administrative Procedures Act.”

State v. Corriher, 533 S.E.2d 800 (Ga. Ct. App. 2000). · cites it 10× “The State contends that the instrument and the operator fall within the exception to the APA requirements created in OCGA § 35-3-155 which was enacted as part of a comprehensive overhaul of the statutes dealing with DFS.”

State v. Bowen, 537 S.E.2d 417 (Ga. Ct. App. 2000). · cites it 36× “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 *418 the BUI law.”

Berkow v. State, 534 S.E.2d 433 (Ga. Ct. App. 2000). · cites it 4× “In light of the enactment of OCGA § 35-3-155, Berkow claims that the testimony from the DFS trained and certified operator that the 20-minute rule is an approved DFS testing method was sufficient to establish this as fact.”

Mowery v. State, 507 S.E.2d 821 (Ga. Ct. App. 1998). · cites it 2× “We note that pursuant to OCGA § 35-3-155, which became effective May 1, 1997, the APA does not apply to testing by the GBI’s Division of Forensic Sciences.”

Hammontree v. State, 512 S.E.2d 57 (Ga. Ct. App. 1999). · cites it 2× “The author *344 ities relied upon by defendant have been legislatively superseded by the enactment of OCGA § 35-3-155, which Code section “expressly provides that the Division of Forensic Sciences need not seek approval of testing methods and procedures through the…”

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