The Court of Appeals citing the Cronkite case determined that for any of these Appellants to be entitled to a certificate of materiality they must present evidence that the source code of the machine is logically related to the consequential fact of the accuracy and reliability of the result generated by the Intoxilyzer 5000 in their particular breath test and not generally. One appellant did present evidence of specific evidence that his act of hyperventilating before the breath test created an erroneous result and the source code would show how the machine compensates for hyperventilating or if it does at all which purportedly meets the Cronkite Standard. However, the Trial Court Judge determined the testimony from the expert was not credible so the Appellant failed as well.
Ironically, the standard for pre-trial discovery in a civil case where only monetary damages are at stake is that the discovery need only be reasonably calculated to lead to the discovery of admissible evidence and such requests are broadly construed. Yet, in a criminal action where a citizen’s liberty is at stake, a trial subpoena can not be issued for an out of state witness to the sole manufacturer of the State of Georgia’s official DUI breath testing device utilized in all Georgia DUI criminal prosecutions unless a Defendant can point to a specific error in his or her breath test, there are no witnesses in the state that can testify to the machine’s internal workings, the manufacturer has intentionally not registered to do business in Georgia with the Secretary of State’s Office as a foreign corporation in violation of State law, and the breath test manufacturer has no offices located in Georgia despite earning tens of millions of dollars in state and local government contracts. That seems fair.
The takeaway from this opinion seems to be that if your expert can only testify as to general issues of reliability and accuracy of the Intox 5000 because he has not seen the source code then you are not entitled to a certificate of materiality to subpoena the source code of the Intoxilzyer 5000 because you can not point to a specific problem with your breath test. However, if your expert testifies that there is a problem with your particular breath test result, he must be lying because he has not seen the computer source code of the Intoxilyzer 5000 so how could he know, then you are not entitled to a certificate of materiality to subpoena the computer source code of the Intoxilyzer 5000. So checkmate.
-Author: George Creal