- Monday, 20 June 2011 13:29
The Georgia Supreme Court issued rulings in 2 cases today involving the issue of whether the manufacturer of Georgia’s breath machine
can be subpoenaed to court. The manufacturer, CMI, is based in Kentucky. Defense lawyers have sought to subpoena the “source code” for the Intox 5000. The source code is the software which runs the Intox. Georgia prosecutors have always fought any request that the software be provided to see if the machine was working properly.
The only avenue for a defendant to obtain the software was to request that a subpoena issue asking CMI’s representative to appear in a Georgia court and bring the software with them. In one case, Yeary v. St.,
both the trial court and the Court of Appeals denied Yeary’s request because she failed to actually name a person who could bring the software from Kentucky. Today, the GA Supreme Court said that since a corporation is considered a “person” under our law, the defendant can simply ask for a subpoena of CMI, and their representative or agent can appear.
The next case, Davenport
, involved the issue as to whether the defendant had to show that the “witness” was material and necessary. Both the trial court and Court of appeals had told Davenport that since she didn’t prove that the source code was necessary and material to her defense, she couldn’t subpoena CMI to bring the software to Georgia. Today the GA Supreme Court said that the software is material to a DUI defense in a “DUI per se” case (over .08) because the machine itself is used in convicting the defendant. Therefore, the defendant can at least send the subpoena to a Kentucky judge, who will then determine if the software is material to the case.
This is huge because for years, the State has refused to provide any information about the Intox 5000’s software; Justice Nahmias said it best:
“By this ruling the trial courts may alleviate due process concerns that exist because the State enacts a law in which: 1) evidence used to determine the guilt of an accused in a DUI
per se case comes not from a forensic scientist but from a machine that takes specimen from a defendant and generates a test report; 2) the machine’s computer code is not available to the Defendant through ordinary discovery because the State avoids possessing it in Georgia; 3) the machine’s test result is admissible at trial through a witness who can say he was qualified to operate the machine but has no knowledge of how it actually works, and 4) the machine uses up the sample and nothing is maintained (State does not keep your breath sample) for later testing.”
Which is what I have been arguing about this machine for years. Why doesn’t the State maintain breath samples so we can independently test them? Why don’t they provide the software for the machines so they can be tested? What are they hiding?