Discovery, Intox 5000, Discovery, Full Information, Source Code: Yeary v. State, A09A1786 (February 10, 2010) and Davenport v. State, A09A1619 (February 11, 2010). The Court of Appeals in a pair of decisions out of Gwinnett County State Court in Lawrenceville, and Cobb County State Court in Marietta, Georgia have affirmed the denial of DUI Defense attorneys to even subpoena the computer source code for the Intoxilyzer 5000 in Georgia under the Uniform Act to Secure the Attendance of Witnesses from Without the State (Uniform Act). In Yeary v. State, Defendant did not provide a particular witness at CMI, Inc. in Kentucky who could produce the source code of the Intoxilyzer 5000 so his motion did not comply with the Uniform Act.
In Davenport, the subpoena was denied because there was no medical testimony that her asthma condition in October of 2007 and no evidence that her difficulty breathing before the test was related to her asthma, so there was no showing that the computer source code was material to her case where she was convicted of DUI for blowing .156 on a machine that is banned in Florida as inaccurate. So now according to Stetz v. State, all that the state must produce under the Full Information statute is the breath strip and you can’t subpoena it unless you can prove the materiality of the evidence sought to your particular case by bringing in a medical doctor to testify for you. The only issues that have not been addressed are the Constitutional issues such as the Sixth Amendment right to confrontation, right to cross-examine, and shifting of the burden from the State to the Defendant to prove materiality. The very issues that were dodged by affirming the grant of Intoxilyzer source code in State v. Smiley.