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George Creal is first Georgia Lawyer to have DUI breath test exclusion for no source code affirmed

State v. Smiley, A09A1827 (12/22/2009). Attorney George Creal is the first lawyer in Georgia to have the exclusion of Intoxilyzer 5000 DUI breath test results by a trial court affirmed by the Georgia Court of Appeals for the failure of the state to produce full information as required by state law including the mysterious Intoxilyzer 5000 computer source code.

Although the precedential value of the case is limited to the particular circumstances of this case by the opinion.  The opinion does have some value for DUI practitioners. The between the lines ruling is that they affirmed the production of everything from training manuals of the index operator and area supervisor to quarterly calibration results to maintenance records to the intox 5000 computer source code. What is interesting is how the Court of Appeals ignored the constitutional arguments that lack of information violates due process and the Defendant’s 6th Amendment rights by not allowing cross-examination of the self admitting calibration certificates allowed by the statute of the DUI breath test, is burden-shifting as it requires the Defendant to hire an expert to challenge a test result and denies the defendant right to counsel by preventing a thorough and sifting cross-examination of the breath test result. At least the decision is something to counter the decision in STETZ v. THE STATE. A09A1474., Court of Appeals of Georgia, Decided: October 28, 2009 which only allows the breath strip as full information.  Under Stetz, the intox  5000 could be a random number generator and no one would ever know.

The bottom line is that the Georgia Court of Appeals will give the trial judge pretty broad discretion to rule on dui breath testing full information as if it was discovery, but according to Justice Johnson’s concurrence, the records custodian for the agency that owns the breath test machine and the area supervisor will have to be subpoenaed to every motion hearing to testify about what records they have in their possession in order for a court to even order full information.   After Smiley what is left for the DUI practitioner is the power of the Intoxilyzer 5000 Full Information subpoena, I have subpoenaed some pretty good stuff for recent DUI jury trials including a DUI breath test sample variance of .032 (the legal limit is 0.08) and some great stuff on the partition ratio of the Intox 5000.  The Intoxilyzer 5000 service manual that we subpoenaed revealed information that fever, body physiology, and gender can influence the breath result negatively. Amazingly enough, the partition ratio flaws of the Intox 5000 are all covered in the area supervisor’s training manual.  The State even trains its machine operators not to bring their training manuals to court because of the damaging information contained in them.  The rest of the DUI breath test full informatoin comes form the GBI-DOFS log maintained with the intox 5000, calibration records and maintenance records. The criminal bar needs to continue assaulting the Intox 5000 across the state and bring it down. The Intox 5000 is not even admissible in Florida anymore now that the Intox 8000 has revealed about 70 bad tests a month for individual Intox breath testing machines on the same technology but with calibration testing for every defendant breath test instead of quarterly with an area supervisor.