Recently, the Georgia Supreme Court has resolved the source code issue brought up with Cronkite v. The State case. DUI defense lawyers in Georgia have been filing motions to secure out-of-state witnesses from CMI Alcoblow Breath Test to bring the source code software to Georgia for inspection of errors and flaws.
The source code is the software that operates the Intox. 5000 breath test, which measures an individual’s blood alcohol content. To get an order for an out-of-state witness, the proponent of the subpoena must show that the witness is a “material witness”. A material witness is defined as “a witness who can testify about matters having some logical connection with consequential facts”.
The Supreme Court holds that, in order to show that the out-of-state witness who was to provide testimony regarding the source code was a “material witness” in this case; Cronkite was required to show the witness’ testimony regarding the source code bore a logical connection to facts supporting the existence of an error in his breath test results.
In other words, the Court places the burden on the Defendant in a DUI case to show facts which would support the existence of a possible error in his specific breath test results.
How in the world a Defendant would ever be capable of doing that is beyond me, and apparently is beyond the folks down at the Ga. Supreme Court as well.
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