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Sanders v State – Intoxilyzer source code is not material to a DUI

Sanders v. State, A14A0142, June 18, 2014. Following a bench trial of a DUI under OCGA 40-6-391(a)(5), Meredith Sanders was found guilty of DUI. She appealed claiming that her Constitutional rights to due process and compulsory process were violated by the failure of Judge Diane Bessen of the Fulton County State Court to grant a continuance to obtain an out of state subpoena for a witness from CMI, Inc in Kentucky to produce the computer source code underlying the random number generator otherwise known as the Intoxilyzer 5000 which is being phased out by the GBI due to reliability concerns. Sanders had previously requested and Judge Bessen had granted a certificate of materiality for an out-of-state subpoena concerning an out-of-state witness request under the Uniform Act to obtain the Intox source code.  The Kentucky Trial Court had denied the request finding that it was neither material nor necessary, nothing more than a fishing expedition and essentially ignoring the Georgia Trial Court’s certificate of materiality. It should be noted that the manufacturer of the Intoxilyzer 5000 is the largest single employer in the County in Kentucky where the certificate was filed. The Kentucky Trial Court’s orders are still under appeal in Kentucky. The Georgia Court of Appeals summarily rejected the Constitutional claims citing Smith v. State, 325 Ga. App. 405, 410, 750 SE2d 758 (2013) and Phillips v. State, 324 Ga. App. 728, 751 SE2d 526 (2013).  It should be noted that Smith v. State simply relied on the reasoning in Phillips v. State. Phillips v. State held that because there is no evidence that the source code is Brady material or exculpatory under Brady v. Maryland it is not a Constitutional violation to deny a continuance (what about the right by the Defendant of an in-camera inspection of all alleged Brady material by the trial court?); and because source code is not testimonial just like an Intoxilyzer 5000 inspection certificate under OCGA 40-6-392 as in Rackoff v.State, it is not a violation of the confrontation clause or right to confront witnesses call against a defendant which was at least implicitly over-ruled by Bullcoming v. New Mexico.  See also, Disharoon v. State, 291 Ga. 45,727 S.E.2d 465 (2012) (Query: what if the certificate of materiality simply asks for a witness from CMI, Inc., the manufacturer of the Intoxilyzer 5000, to testify to the internal workings of the machine which no witness available in Georgia is capable of doing?).  I wonder what Justice Scalia would have to say about this? Legal Twister?

-Author: George Creal