CMI, Inc. has been engaged in a multi-state battle to prevent DUI defendants from obtaining their claimed super-secret computer source code. Analyzing the computer source code of these breath testing machines is the only way to know how they generate their alcohol breath results as so many variables have to be assumed and are not measured.
The trial court had held that such accurate evidence was hearsay and without live testimony from witnesses about the accuracy problems of the Intox 5000, the defendant could not establish the materiality component of state witness subpoena issuance inquiry. The logical dilemma posed by the trial court’s ruling was the only people with personal knowledge of the internal workings of the machine could testify in Georgia that such issues were material to issue a subpoena were the witnesses sought by the out of state subpoenas at issue in the appeal. So what comes first, the chicken or the egg? Luckily, Justice Nahmias found that the proffered evidence could be hearsay as it was a preliminary determination under the Evidence Code which is an exception to the hearsay rules in Georgia under the new evidence code.
Parker submitted evidence regarding the widespread accuracy problems with the Intoxilyzer. Washington, DC had to overturn 300 DUI convictions as a result of the use of faulty machines over a decade. Virginia officials spent $1.8 million to replace Intoxilyzer 5000 units deemed “dated, unstable and unreliable.” This evidence is admissible and will have to be weighed by the Trial Court to determine if it meets the Materiality requirement of Georgia’s Out of State Witness Subpoena statute.
-Author: George Creal