Weston D. Cronkite appealed the trial court's denial of a motion for a certificate of materiality under The Uniform Act to Secure the Attendance of Witnesses from Without the State, OCGA §§ 24-10-90 et seq. He sought to obtain the human-readable programming instructions for the Intoxilyzer 5000 via a representative of the Kentucky manufacturer. The trial court found that the evidence was not “material” within OCGA § 24-10-94 (a) and declined the motion. The court of appeals affirmed.
After Cronkite was arrested for suspected DUI he submitted to a breath test on the Intoxilyzer 5000 which gave readings of .187 and .201. It should be noted that Cronkite has a surgical implant in his upper jaw and a retainer on his lower teeth. Prior to trial Cronkite filed a motion pursuant to OCGA §§ 24-10-90 et seq., requesting an order finding that the Intox. 5000. source code is “material, relevant an necessary to preparing the defense in this criminal prosecution.” At the motion hearing Cronkite produced an expert witness, Mathew Malhiot, who testified that the Intox. 5000 software is designed to generate error messages in “numerous” circumstances that might produce improper readings, including excessive mouth alcohol, but that without the knowledge of parameters established in the source code there was no way to know the threshold for which a misreading would be reported. Malhiot could not testify that the presence of implants or partial dentures trapped excess alcohol, but he did say that “it can cause it.” Also, he testified that in the absence of the Intox. 5000 source code he could not determine if any errors were present.
In upholding the Gwinnett County Trial Court's denial of the certificate, the Georgia Court of Appeals hinged its interpretation of Davenport v State (2011) through the lens of Layfield v. Dept. of Transp. (2006). In Davenport the Georgia Supreme Court defined “material witness” as “a witness who can testify about matters having some logical connection with the consequential facts” of the case. Regarding expert witnesses' testimony in motions to obtain a “material” witness “when the basis of the [expert witness'] opinion is given and it appears that it is wholly speculative or conjectural, it must allow that his opinion is without foundation and has no probative value […] and will not support a verdict” Layfield. The court of appeals asserts that since the expert witness was required to “testify to some fact indicating the possibility of an error in this case,” that the trial court did not err in denying the motion. Furthermore, “the question presented here is not whether the source code itself […] 'has some logical connected' with the consequential facts of this case,[…]. Rather, the question is whether the trial court could have concluded, in the exercise of its discretion, that the testimony presented at the hearing failed to provide any evidence of an error in the source code that was material to this case.” We have a conundrum. The opinion holds that because according to the Expert,Malhiot, there's a possibility that Cronkite's dental implants could have housed excessive alcohol in his mouth causing the Intox. 5000 to give a false reading is only “material” if there's evidence of error in the source code, which is the same source code Cronkite is seeking to obtain by the motion for a certificate of materiality. In other words, to subpoena a witness to testify about the Intoxilyzer 5000 source code, you must be able to testify about errors in the source code that is unavailable to you through discovery, open record request or subpoena. Now that's a conundrum.