In Holowiak v. State, A08A1872, the Court of Appeals refused to address the Intox 5000 source code in an appeal from the State Court of Cherokee County in Canton, Georgia. Mr. Holowiak, who was stopped at a roadblock in Cherokee County, challenged the “propriety of the roadblock and test results from the Intoxilyzer 5000 machine that used his breath to measure his BAC.”  The Court held a hearing on Holowiak’s motion to suppress and produce [the Intoxilzyer 5000 computer source code].  The motions were denied by the trial court in Cherokee County State Court.  An interlocutory appeal was granted.  Holowiak enumerated as an error the Cherokee County Trial Court’s failure to find that the computer source code for the Intoxilyzer 5000 machine used to test Holowiak’s BAC was “necessary, material and relevant,” so that Holowiak could procure this evidence using a subpoena.  Holowiak filed a Petition for Certification of Materiality of Testimony from an Out of State Witness four months before the hearing in the Canton, Georgia Trial Court.

The Court of Appeals found that Holowiak had not reserved the issue for appeal because he did not bring the issue up at the Trial Court level in Cherokee County.  The Court of Appeals split hairs on the issue that the Petition filed was for relevance and materiality of the out-of-state witness who was to testify on the source code and the relevance and materiality of the source code itself was not requested.  Therefore, the Court of Appeals refused to rule on the issue of the relevance of the source code.  This issue remains unresolved.

The Court of Appeals then curiously commented that Holowiak did not raise the issue of the Cherokee County State Court’s ruling that source code was not a scientific report, but “even if he had” Holowiak did not carry his prima facie burden (when did criminal defendants get a burden to prove anything except affirmative defenses?) that the State possessed or controlled the Intoxilyzer 5000 Source Code so he would have lost anyway.

This ruling is curious in three respects.

1) Why would Holowiak appeal a ruling of the trial court he believed was correct?

2) Source Code is not a scientific report under O.C.G.A. 17-[1]6-23.  O.C.G.A. 17-16-23 provides in pertinent part,

(a) As used in this Code section, the term “written scientific reports” includes, but is not limited to, reports from the Division of Forensic Sciences of the Georgia Bureau of Investigation; an autopsy report by the coroner of a county or by a private pathologist; blood alcohol test results done by a law enforcement agency or a private physician; and similar types of reports that would be used as scientific evidence by the prosecution in its case-in-chief or rebuttal against the defendant.

Source code does not fall into any of these categories. If the source code is not a scientific report, it does not matter if the source code is in the possession or control of the prosecutor because the “full information” provisions of OCGA 40-6-392(a)(4) do not require “possession or control” and are outside and separate from the discovery statutes.

3) If they are scientific reports, then possession and control do not end the inquiry. O.C.G.A. 17-16-23(c) provides, “If the scientific report is in the possession of or available to the prosecuting attorney” they must be provided within 10 days of trial.  CMI of Kentucky, Inc. which manufactures the Intoxilzyer 5000 has made judicial admissions in sworn and verified legal filings that, “CMI further affirmatively asserts and alleges that in or about September 2007, CMI voluntarily changed its policy regarding the availability and has thereafter offered to produce the source code in response to a valid court order, subject to an appropriate Non-Disclosure Agreement and Protective Order that will protect CMI’s valuable proprietary trade secrets.”  State of Minnesota et al v. CMI of Kentucky, Para. 21, Case No. 08-cv-603, United States District Court, District of Minnesota, April 9, 2008.  Obtaining the source code with a simple Non-Disclosure Agreement is “available.”

This is curious.  These issues are far from resolved.