DUI Appeal - Source Code Win in Georgia

In Davenport v. State of Georgia, --- S.E.2d ----, 2011 WL 2436668 (Ga.) the trial court denied a request for defendant's request for a certificate requesting the attendance in Georgia of an out-of-state witness, namely the Person in control of the source code for the Intoxilyzer 5000. On appeal, the Supreme Court of Georgia found that the trial court's determination that such a witness was not 'material' employed the wrong standard. The standard announced in the opinion states:
“a material witness is ‘a witness who can testify about matters having some logical connection with the consequential facts, esp. if few others, if any, know about these matters.“
The court then remanded the matter for further proceedings. Of additional interest however, was the concurring opinion, which is reproduced in full herein:
I join fully in the majority opinion and note that it may have two salutary effects. First, in Lattarulo v. State, 261 Ga. 124, 401 S.E.2d 516 (1991), this Court held that the results of breathalyzer tests conducted in accordance with the statutory scheme “may be admitted into evidence without expert testimony regarding the scientific theory behind the operation of the test.” Id. at 127, 401 S.E.2d 516. But the Court also said that “[a]n accused may always introduce evidence of the possibility of error or circumstances that might have caused the machine to malfunction,” with such evidence going to the weight of the breathalyzer results. Id. at 126, 401 S.E.2d 516. Under today's decision, defendants seeking to obtain such evidence from another state must still show the Georgia court that the evidence is “material” to their case as required by OCGA § 24–10–94(a), but they need not make the more demanding showing required by the now-disapproved Court of Appeals' decisions.

Second, by applying the correct “material witness” standard, trial courts may alleviate the due process concerns that may otherwise exist (but are not well presented in this appeal) when the State enacts a statutory scheme in which: (1) evidence usually determinative of the defendant's guilt (e.g., blood alcohol content in a per se DUI prosecution) is tested and reported, not by forensic experts who testify and face cross-examination on the reliability of their methods and the accuracy of their results, but rather by a machine (e.g., the Intoxilyzer 5000) that takes in a specimen from the defendant and, through internal mechanisms and computer code, generates a test report; (2) the machine's computer code is unavailable to the defendant through discovery or compulsory process because the State avoids possessing it in Georgia; (3) the machine's test result is admissible at trial through a witness who can say that he was qualified to operate the machine and it operated as designed (see, e.g., OCGA § 40–6–392(a)), but who has no knowledge about whether the machine was in fact designed to produce reliable and accurate results under the circumstances presented; and (4) the machine uses up the specimen, with nothing maintained for later confirmation or independent testing.
Lastly, the dissenting opinion stated in part:
"[T]here is no merit to Davenport's assertion that the trial court's ruling denies her constitutional rights to compulsory process, confrontation, due process of law, and a fair trial. The contention is based upon the premise that the I–5000 is Davenport's accuser, invoking the constitutional right of confrontation. However, as noted by the State, the I–5000 is simply a tool used by law enforcement to determine the breath-alcohol content of a driver who is suspected of driving under the influence. Davenport was adjudged guilty by the trial court on the basis of evidence, to which Davenport stipulated, some of which was reported by the I–5000 after it was certified to be fully operational. In the context of a challenge to the admission into evidence of an inspection certificate for the Intoxilyzer, this Court has determined that there is no violation of the right of confrontation. Rackoff v. State, 281 Ga. 306, 309(2), 637 S.E.2d 706 (2006); Brown v. State, 268 Ga. 76, 80, 485 S.E.2d 486 (1997); see also Jacobson v. State, 306 Ga.App. 815, 818(4), 703 S.E.2d 376 (2010). This is so, in part, because an inspection certificate, like a computer source code, is not testimonial in nature; it is part of the regular course of business regarding operation of the I–5000, and it is not utilized in an investigatory or adversarial setting or generated in anticipation of the prosecution of a particular defendant. Rackoff v. State, supra at 309(2), 637 S.E.2d 706.


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