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Parker v State – guilt by machine wins again

Parker v. State, A13A2100, March 13, 2014.  Jason Brent Parker was charged with DUI per se for having an illegal breath alcohol level. He applied for a certificate of materiality under the Uniform Act to Secure the Attendance of Witnesses from Without the State to obtain the source code for the Intoxiliyzer 5000 or Georgia’s official State Administered Breath Test.  The Trial Court denied the motion finding that Parker’s evidence of the materiality of the source code information was hearsay.  A stipulated bench trial resulted in a finding of guilt being held and this appeal followed.

Parker argued that the Trial Court erred by excluding hearsay evidence for the need for the source code for the Intoxilyzer 5000 in his proffer at the motion hearing; erred that he failed to show a logical connection to facts in his case to an error in the test result; violated his right to due process, compulsory process and fair trial (what about that Trial Court shifted the burden to the Defendant to prove innocence?); federal courts require access to the Intoxilyzer 5000 source code, and source code must be provided under the discovery statute.

Parker was allegedly stopped for speeding 72 in a 55 after the Master’s Golf Tournament at Augusta National.  He admitted drinking, allegedly failed field tests, was arrested and registered a .157 and .158 on the Intoxilyzer 5000.

Parker offered a transcript of his expert’s testimony from another DUI case, two affidavits from experts, and three scholarly articles. The State objected to the proffer under OCGA 24-1-2(b). (Query: How is this not a preliminary question under OCGA 24-1-2(c)(1). See, OCGA 24-1-104)  Parker countered that under OCGA 17-8-25 this is a criminal procedure motion and not a fact-finding motion and the proffer was proper. The Court of Appeals found that the evidence in the proffer was properly excluded without any real explanation.

Parker argued that the State has possession of the source code and should produce it under the discovery statute in OCGA 17-16-23 and under full information in OCGA 40-6-392(a)(4). The Court of Appeals distinguished Smiley v. State, 301 Ga. App. 778 (2009) from Parker and refused to address Parker’s assertion of the Public Function test under federal law to CMI citing Wills v. Unvi. Health Svcs, 993 F.2d 837, 840–841 (11th Cir. 1993).

-Author: George Creal