STATE v. FEN YUE TAN, A10A0687, Court of Appeals of Georgia, Decided: July 8, 2010. F. Tan was arrested for DUI in Gwinnett County after rear-ending another vehicle at a roadblock.  She had slurred speech, red and glassy eyes, took two Georgia Standardized Voluntary Field Sobriety Evaluations, a portable breath test, and gave an insufficient sample on the Intoxilyzer 5000 state-administered breath test.

The Defendant Georgia DUI attorney requested a copy of the insufficient sample breath strip from the Intoxilyzer 5000 as a scientific report under O.C.G.A. Sec. 17-16-23.  The prosecution did not provide the breath test result as required by statute within ten days of trial.  The DUI Trial Court in Gwinnett County suppressed evidence of the breath test refusal.  The State appealed before trial.  The Georgia Court of Appeals found that an insufficient sample on the Intoxilyzer 5000 is not a scientific report as defined by the Georgia code as it contains no numerical alcohol breath test result as such it is not discoverable under the scientific reports statute.  The Georgia Court of Appeals found that although the DUI breath test machine records breath volume that is mere recordation of data and not findings based on scientific analysis.