DUI Appeal - Georgia Source Code, Per Se, and Intoxilyzer Issues

In Holowiak v. State of Georgia, --- S.E.2d ----, 2011 WL 1123539 (Ga.App.) the defendant was originally charged with both driving under the influence (DUI), and driving with a BAC over 0.08 (per se). He was found not guilty of DUI, and the jury hung on the per se. On retrial of the per se count, the defendant was convicted. The defendant appeals based on two issues: the admissibility of impairment evidence and SFSTs when the defendant is only charged with a per se violation, and the refusal of the court to issue a subpoena for the source code to the Intoxilyzer 500 manufacturer, CMI Inc.

On appeal, the Court approved of use of the evidence of impairment and performance on the SFSTs in order to establish the validity of the breath test as follows:

“Field sobriety tests are not designed to detect the mere presence of alcohol in a person's system, but to produce information” about the quantity of alcohol in the system. Kirkland v. State, 253 Ga.App. 414, 416 (559 S.E.2d 161) (2002) (officer's testimony that HGN test correlated with Intoxilyzer results was relevant and admissible). "

Additionally:

"The officer testified that, based on his years of training and experience, he concluded that Holowiak's performance on the field sobriety tests was consistent with a test result of .125 from the Intoxilyzer. Thus, the evidence of his field sobriety test was relevant to counter Holowiak's attacks on the accuracy of the breath test. Likewise, the evidence of Holowiak's impairment was relevant to establish the facts that were the basis for the DUI arrest."

The defendant also complained that the trial court erred in refusing to approve of an out-of-state subpoena to CMI to compel production of the source code for the Intoxilyzer 5000. The court discussed the relevance of the issue as follows:
In Stetz v. State, 301 Ga.App. 458, 461 (687 S.E.2d 839) (2009), this Court defined the scope of “full information” to which a DUI defendant is entitled under OCGA § 40–6–392(a)(4) when the test of a person's blood alcohol concentration is determined by an Intoxilyzer machine. We held,

Unlike the gas chromatography test, which produces data that has to be interpreted by a chemist to determine blood alcohol level, an intoxilyzer does not produce raw data but rather prints out the actual test result showing the person's blood alcohol level. In other words, the machine computes the test result. Therefore the only discoverable information from an intoxilyzer test under OCGA § 40–6–392(a)(4) is the computer printout of the test result.
Additionally, the appeals court found that the source code evidence was speculative at best:

"The information would be used, among other things, to “determine the accuracy, reliability and admissibility of the results” of Holowiak's breath test. Although Holowiak noted that there were pending allegations in other states of “problems with the Intoxilyzer 5000 breath test results based upon breathing patterns,” and that the information would be used “as applied to [his] particular health and physical issues,” he did not allege that he actually had a physical or health issue that might affect the results of the breath test, much less present any evidence about it."

Thus, the appeals court affirmed the defendant's conviction.

NOTE: The case implicitly authorizes the defense to use SFSTs and other non-impairment evidence as a defense to a breath test's validity. Additionally, it is my suspicion that the defense attorney offered many more ways that the source code was relevant, but that the appeals court seized only on the arguments that were more speculative, in order to sustain the trial court's original ruling.


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