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Forsyth County DUI: Intoxilyzer 5000 or the State Breath Test maintenance logs are not relevant in a Breath Test DUI case? Jacobson v. State. What about the Constitutiional right to confront and cross-examine witnesses?

JACOBSON v. STATE, 10A2041, Court of Appeals of Georgia, Decided: November 16, 2010. After a DUI jury trial in Forsyth County State Court at the Forsyth County Courthouse in Cumming, Georgia, Jeffrey Lee Jacobson appealed his conviction for DUI alleging that (i) the Forsyth County Trial Judge improperly commented on the evidence in violation of OCGA § 17-8-57, (ii) allowing the state to admit the results of Jacobson’s breathalyzer test, (iii) allowing the state to admit certificates of inspection for the breath-testing equipment, and (iv) refusing his request to admit maintenance logs showing when the breath-testing equipment was taken out of service. The Georgia Court of Appeals found that the DUI trial judge did not improperly comment on the evidence when he told the jury he would not allow them to hear portions of the testimony read by the court reporter on what “had and had not been proven” because they had already heard it and it would not help them to hear it again.

The Court of Appeals held that the state not producing the breath strip to the DUI defendant in discovery was not a harmful error because Defendant was given a copy of his breath results when he left the jail.  The Court of Appeals found that the certificates of inspection did not violate Defendant’s Constitutional right to confront witnesses as the certificates were not made for a specific case and therefore were not testimonial. Finally, the Court of Appeals found that the Forsyth DUI trial court did not err by refusing to allow admission of maintenance records of the Intoxilyzer 5000 breath test machine that the DUI defendant blew into as they were not relevant because they are not included in the definition of Full Information under OCGA 40-6-392(a)(4) under Stetz v. State.