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Georgia DUI Breath Test Due Process: A light on the horizon

The Georgia DUI Breath Test Concurring Opinion heard round the world. Davenport v. State, s10G1355, June 20, 2011.

“DUE PROCESS…YES.DUE PROCESS. HOLD ON A SECOND. I NEED A MINUTE. DUE PROCESS, I AM JUST GETTING USED TO IT.” quote of a frazzled indigent defendant sitting in jail wearing two pairs of glasses, grey hair standing up like Don King, customary jail breath, and in an orange jumpsuit and flip-flops upon learning that Due Process required that he get a fair trial before being sent to prison and his court-appointed attorney, for the first time in his life, was not telling him he had to plead guilty.

In Davenport v. State, S10G1355, Supreme Court of Georgia, June 20, 2011, Justice Nahmias wrote what may be the single most important piece of non-binding jurisprudence or Obiter dictum (commonly called dicta by lawyers) in Georgia DUI history.  It is so perfect that it can only be quoted. It is so obvious that I am dumbfounded that I am the only one who, except one or two cases at the trial level, has been inartfully arguing it to date.

“Second, by applying the correct “material witness” standard, trial courts may alleviate the due process concerns that may otherwise exist (but are not well presented in this appeal) when the State enacts a statutory scheme in which:

(1) evidence usually determinative of the defendant’s guilt (e.g., the blood alcohol content in a per se DUI prosecution) is tested and reported, not by forensic experts who testify and face cross-examination on the reliability of their methods and the accuracy of their results, but rather by a machine (e.g., the Intoxilyzer 5000) that takes in a specimen from the defendant and, through internal mechanisms and computer code, generates a test report;

(2) the machine’s computer code is unavailable to the defendant through discovery or compulsory process because the State avoids possessing it in Georgia;

(3) the machine’s test result is admissible at trial through a witness who can say that he was qualified to operate the machine and it operated as designed (see, e.g., OCGA § 40-6-392 (a)), but who does not know whether the machine was designed to produce reliable and accurate results under the circumstances presented; and

(4) the machine uses up the specimen, with nothing maintained for later confirmation or independent testing.”

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