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Georgia Breath Testing Source Code Returns: Episode One -Necessity demands a road trip to Kentucky

Davenport v. State, S10G1355, Supreme Court of Georgia, June 20, 2011.

Emily Davenport filed a motion under the Uniform Act to Secure the Attendance of Witnesses from Without the State, O.C.G.A. 24-10-90 to obtain evidence of the internal workings of the Intoxilyzer 5000, specifically the source code, from employees at CMI, Inc. in Kentucky.  Davenport was convicted at a bench trial for registering .156 on the DUI breath test on the Intoxilyzer 5000. Davenport appealed to the Court of Appeals which denied the appeal on the basis that Davenport had not shown that the out-of-state witness was a necessary and material witness to the case.

The Georgia Supreme Court ruled that the Georgia Trial Court must find only that the out-of-state witness’s testimony is material and the out-of-state judge must determine the necessity of the out-of-state witness’s testimony in the criminal proceeding in Georgia. Materiality is defined as “a witness who can testify about the matters having some logical connection with the consequential facts, especially if few others if any know about these matters.”  Necessity is determined by the out-of-state judge and was not defined or delineated by the Supreme Court. However, given that Owensboro, Kentucky is an hour and a half from Louisville and there are only two judges in the judicial circuit encompassed by it, they are elected and there are only three major employers including CMI, Inc. in Owensboro, it appears unlikely that any necessity certificates are likely to be issued. This case is not so important from the subpoena standpoint as it is from the concurrence of Justice Nahmias where he states that the current Georgia DUI breath testing regime violates basic due process concerns and is probably irreparably unconstitutional in its current posture.

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