The less safe charge was dropped and Smith was found guilty of one count of DUI per se or driving over the legal limit of 0.08 grams. First, Smith raised the issue of whether there was sufficient evidence that he was driving and whether a breath test was obtained within three hours of driving. First, the Appellate Court found that because the first police officer testified that paramedics checked the driver, the driver had an odor of alcohol, and the officer identified Smith as the Driver there was circumstantial evidence that Smith was the driver. This even though the Officer had personal knowledge that Smith drove or that he knew this because the paramedics told him or Smith told him. Further, the Appellate Court found that because the 911 call came in within three hours of the breath test there was circumstantial evidence that the breath test was within three hours of driving.
Second, the Georgia Court of Appeals found that there was no error given the fact that only one breath test result was obtained as the machine timed out before the second breath test was obtained. The Officer had no idea why a second breath result was not obtained but testified that he believed that Smith saw the first result and intentionally blew an insufficient sample the second time citing Thrasher v. State, 292 Ga. App. 566 (666 SE2d 28) (2008).
Third, Smith argues that the State should turn over the source code of the Intoxilzyer 5000 under the full information provisions of O.C.G.A. 40-6-392(a)(4) which provide that upon submitting to a breath test on the Intoxilyzer 5000 the Defendant or his attorney shall be entitled to full information regarding the breath test. The Court issued a certificate of materiality but the Kentucky Trial Court denied the request for a certificate of necessity. Smith argues that because the State contracts for purchase and service of the Intoxilyzer 5000 it has the power to bargain for access to the Intoxilyzer 5000 source code. Smith also argued that because CMI is legally a state actor under 42 USC 1983 the Court should require CMI in Kentucky to produce the source code. The Georgia Court of Appeals disagreed and refused to depart from the clear legislative directive not to produce the source code.
Fourth, Smith argued that the trial court violated his rights to compulsory process, due process, fair trial, and confrontation by proceeding to trial without waiting for resolution of his appeal of the Kentucky court’s adverse order. The Georgia Court of Appeals denied this enumeration of error as well citing Phillips v. State issued simultaneously with this case.
Finally, the Court of Appeals remanded the motion for dismissal for a Constitutional speedy trial back to the Fulton County trial court for findings of fact as to the four Barker v. Wingo factor as it recently held in Cawley v. State back in October.
-Author: George Creal