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Phillips v. State – when a live witness is not testimonial – still searching for the Source Code in the Cold Kentucky Rain

Phillips v. State, A13A0991, DO-036 C, Court of Appeals of Georgia, Decided: November 15, 2013.  Just as Elvis sang in Kentucky Rain, Georgia lawyers are still searching for the Intoxilyzer 5000 source code while Kentucky rain keeps pouring down And up ahead’s another town that they’ll go walking thru with the rain in their shoes still searchin’ for Due Process in the cold Kentucky rain.  In March of 2006, Brett Robert Phillips was arrested in Atlanta Georgia for DUI after a State Trooper observed him at a traffic light without his headlights on and allegedly drove off from the traffic light with tires squealing in a zigzag manner. Field tests indicated 6/6 clues on HGN, 2/8 clues on the Walk and Turn test, and 2/4 of clues on the one-leg stand. A state-administered breath test resulted in a .126 and a .138 on the Intoxilzyer 5000. In January of 2008, Phillips filed a motion for a certificate of materiality under the Uniform Act to Secure Witness from Without the State for the source code of the Intoxilyzer 5000 from its manufacturer CMI, Inc. in Owenboro, Kentucky.  On April 25, 2012, the Fulton County trial court issued a certificate of materiality for filing in the Trial Court in Davies County Kentucky to determine the necessity of the request to issues a subpoena pursuant to the Uniform Act. The Kentucky Court declared the request for a certificate of materiality from the Atlanta Georgia Trial Court defective on its face and nothing more than a fishing expedition for the DUI breath test source code and employee witnesses.

The Georgia Court appeals rejected Phillips’s claims that he was denied compulsory process in his DUI trial as the Kentucky Trial Court rejected the certificate of materiality and requested for a finding of necessity. As such, the Georgia Court was required by the Full Faith and Credit Clause of the U.S. Constitution to accept the Kentucky Trial Court order even though the Trial denied full faith and credit to the order finding a certificate of materiality by the Georgia Trial Court defective on its face.

The Court of Appeals denied Phillips’s claims that the failure to produce the Intoxilyzer 5000 source code violated Brady v. Maryland, 373 U.S. 83 (1963). The Appellate Court found that Phillips could not prove that the prosecution possessed the evidence,  the prosecution had suppressed favorable evidence, nor that the source code would have made a material difference in the outcome of the case. It is worth noting that Phillips was convicted on one count of DUI per se or a breath test DUI only so no breath test no case.  Further, Defendant must prove the Source Code would change the outcome of his case without ever having access to said source code or witnesses with knowledge of the internal workings of the device, and despite the fact that the Supreme Court has held in Davenport that the State intentionally does not possess the source code of the exclusive device approved for DUI alcohol breath testing in this state, the Intoxilyzer 5000 manufactured by CMI, Inc of Kentucky.  Further, the CMI, Inc., despite having entered into millions of dollars of government contracts over the last 30 years has failed and refused to register with the Georgia Secretary of State to lawfully do business in the State to avoid being subject to legal process and service.  Davenport v. State, 289 Ga. 399, 711 S.E.2d 699 (2011) (Nahmias concurrence, “(2) the machine’s computer code is unavailable to the defendant through discovery or compulsory process because the State avoids possessing it in Georgia.”)

Finally, the Court of Appeals applied the holding of Rackoff v. State, 637 S.E.2d 706 (2006) regarding Intoxilyzer 5000 calibration certificate made self-authenticating and admissible by O.C.G.A. 40-6-392 to both documentation and witness from CMI, Inc in Kentucky regarding the Intoxilyzer 5000 and held that these witnesses and evidence were not testimonials and therefore the confrontation clause did not apply. For the first time in the history of American jurisprudence, witness testimony is not testimonial whether it be in the form of an affidavit, i.e., a calibration certificate for the Intoxilzyer 5000 made under oath and notarized under seal in the form of an affidavit or from a live witness as long as the testimony meets the business records exception. Apparently, they have not read Bullcoming v. Mexico where the U.S. Supreme found that affidavits are by definition testimonial and there is no such thing as a business records exception for the government because the government can do no business. Bullcoming v. New Mexico, 131 S.Ct. 2705 (2011).

The source code saga continues as Georgia DUI lawyers continue to walk in the cold Kentucky rain.

-Author: George Creal

Atlanta DUI Lawyers | DUI Lawyer Atlanta