Spann v. State (2012) – Georgia Court of Appeals
In May 2007 Teresa Jean Spann was arrested for DUI. She was convicted after a bench trial in August of 2010. She appealed her conviction, contending that the trial court erred in allowing the admittance of similar transaction evidence and in denying her the issuance of an out-of-state subpoena. Though the Court rejected her argument over similar transaction evidence, it remanded the case to the trial court to reconsider the subpoena issue in light of Davenport v. State (2011). The trial court reviewed Spann’s case and again found Spann was not entitled to subpoena an out-of-state witness. In light of the Georgia Supreme Court’s grant of certiorari in Cronkite v. State, S12C1927 (Nov. 2012) – a similar case to be reviewed in the framework of “’whether the Court of Appeals properly applied Davenport v. State (2012)’” when granting the issuance of an out-of-state subpoena – the Court of Appeals adopted this same framework to address Spann’s second appeal.
In her defense, Spann, through OCGA § 24-10-90, the Uniform Act to Secure the Attendance of Witnesses From Without the State, sought to secure the appearance of an out-of-state witness from CMI, Inc., the Kentucky company that manufactures the Intoxilyzer 5000. The witness was to testify as to the source code and inner workings of the Intoxilyzer 5000, the stationary breath test machine used by Georgia police. According to Davenport, under OCGA § 24-10-90 the trial court must only determine whether a witness is “material”- if he or she “can testify about matters having some logical connection with the consequential facts, esp[ecially] if few others, if any, know about these matters,” Black’s Law Dictionary (8th ed. 2004) Id. Ad 404. Again erring in its discretion, upon remand the trial court, as evidenced in its order, held a hearing to determine “’whether the Defendant had produced evidence to show that the production of the source code was material to challenge the accuracy of the breath test.’” Specifically, the trial court erred in that it sought to determine if the witness was both “material and necessary,” which, as stated in OCGA § 24-10-92 (b), is decided by a judge in the county from which the witness is subpoenaed. For this reason, the Court of appeals again remanded Spann to the trial court for reconsideration.
In recent years, there’s been an ongoing legal battle over obtaining the source code of the Intoxilyzer 5000. Under fire is the presumed accuracy of the machine, and more broadly, the science and methods behind its inner workings. Knowing full well the evidentiary weight of an over-the-legal-limit Intoxilyzer breath test, we are currently spearheading a petition through various motions for the Courts to relax their once opaque [LINK] approach to appeals for out-of-state witnesses. With the Court of Appeals decision in Spann (2012) and the Georgia Supreme Court’s grant of a writ of certiorari in Cronkite (2012), our work may be beginning to pay off.