Yeary v. State was appealed to the Georgia Supreme Court on multiple counts, one of which dealt with the denial of a motion to obtain the source code of the Intoxilyzer 5000 under the Uniform Act to Secure the Attendance of Witnesses from Without the State (OCGA § 24-10-90 et seq.). The Supreme Court reaffirmed the scope of the statute, saying that while “the Uniform Act could be used to obtain the presence and testimony of an out-of-state witness and evidence in the possession of the witness, but it could not be used to request only the production of evidence located in another state”—since these types of requests may be considered ancillary to producing a witness—the statute can be used by a judge to issue a certificate stating that “a person” can be used as a” material witness” if the witness has evidence deemed pertinent to the pending prosecution (OCGA § 24-10-94 (a)). To request out-of-state witnesses/evidence, a judge may issue a summons to be sent to a judge residing in the state from which the witness or evidence is being requested. If the judge approves, he/she in turn summons the witness with the material evidence at hand to appear out of state (Davenport, 289 Ga. At 401). This is generally meaningless as the Judge in Kentucky where CMI, Inc., the manufacturer of the Intoxilzyer 5000 is located is refusing to approve out-of-state subpoenas to Georgia which raises serious Due Process Concerns about the entire Georgia Breath Testing Regime.

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