Georgia DUI Cases of Note

  

DUI Source Code Debate Continues: Mathis v. State, A09A0962

Wednesday, May 06, 2009

In Mathis v. State, A09A0962, the Georgia Court of Appeals addressed an appeal from the denial of a request for the DUI Source Code in a DUI case from Douglasville, Douglas County, Georgia.  The DUI Driver was arrested for speeding found with open beers in the car, displayed manifestations of alcohol impairment according to the DUI police officer, and was arrested for Georgia DUI less safe charge. 

He was read Georgia Implied Consent Notice and asked "could I get a blood test?" The Georgia Court of Appeals ruled that when someone ask for a blood test during the implied consent notice that he must mean he wants the officer to designate a blood test as the state administered test  and not a state administered breath test on the Intoxylzer 5000.  To trigger his right for an additional test, he must use the word additional or independent blood test or ask for a blood test after the implied consent rights are read.

The Court found that the DUI Defendant was not entitled to the source code of the Intoxylzer 5000 from a motion to discover.  The Georgia Court of Appeals did not indicated whether the request was made under the Title 17 misdemeanor discovery statute or O.C.G.A. 40-6-392(a)(4) Full Information regarding the state administered test.   The Court found that based on Hill v. State that the Defendant must make a prima facie showing that the source code is in the possession of the state.  However, the Georgia Court of Appeals ignores that in Hill that there was a stipulation that the source code was a scientific report under OCGA 17-16-23 and thus subject to the "in the possession" or "reasonably available to the state" rule.  OCGA 40-6-392(a)(4) contains no such limitations.  The Court did find that the proper standard for discovery of the source code was abuse of discretion by the court and the Georgia Court of Appeals found no abuse of discretion by Douglas County DUI Court.

The Court finally found that the Defendant's expert, presumably Tony Corroto, a 30 year Atlanta Police Veteran, could not testify about the unreliability of the Intoxylzer 5000 as there was no foundation laid that he had training as to its internal workings but was simply trained to operate the machine.

Query: How can a defendant confront and cross examine an Intoxylzer 5000 Georgia State Administered Breath test without being able to access full information regarding the device including but not limited to the Source Code and who exactly can be qualified as an expert on the Intoxylzer 5000's internal workings if the source code is a propriety trade secret not subject to release?  Can you say burden shifting?  Violation of fundamental Due Process?  There is a Constitutional problem with guilty by magic box.  



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