Cronkite v. State – S12G1927 – July 1st, 2013 In this appeal from the denial of a motion for a certificate of materiality under the Uniform Act to Secure Witnesses from Without the State, the Georgia Supreme Court affirmed the denial of the certificate of materiality. The Supreme Court held that a Georgia DUI Defendant in order to obtain a certificate of materiality must show that the testimony of the witness sought bears a logical connection to facts supporting the existence of an error in his breath test results. In other words, offering facts that a metal retainer can possibly retain mouth alcohol is not enough. But rather, a Georgia DUI Defendant must say that a metal retainer did retain mouth alcohol and we need a material witness from out of state to testify about how the source code addresses this issue and the internal workings of the machine related to this particular, case-specific situation.
Okay, that clears it up. In this case, they brought in an expert at great expense to testify at the trial court level that metal retainers can cause mouth alcohol issues. So exactly what evidence do you need to show that there was a mouth alcohol issue, in this case, to be able to get a subpoena. Is a proffer of proof enough? Can the client say my retainers cause me to have residual mouth alcohol? Maybe he can taste it or smell it for long periods after the drinks? Bringing an expert would be pointless as he could only testify to can and not did cause mouth alcohol. Without access to the source code, there is no way to know if it has errors which are why there is a request for a subpoena to few in the first place.
At least the Supreme Court regulated on the Court of Appeals and say you don’t have to show an error in the source code to get the source code. But the Supreme Court hinted in a footnote that Trial Court may have the discretion to deny a certificate as the out-of-state subpoena statute says “may” rather than “shall” suggesting some good ole’ fashion discretion. This brings up the still lingering issue of does this denial of the subpoena process of the court renders the Georgia per se DUI statute due process less? Remember to file your Constitutional demurrers to the Georgia DUI per se statute prior to arraignment.