Collins v. State
327 Ga. App. 590
Ga. Ct. App.2014Background
- Collins was stopped after erratic driving; officer observed signs of impairment and a portable breath test was positive. At the jail, an Intoxilyzer 5000 breath test read .129.
- She was charged with failure to maintain lane, DUI less safe (OCGA §40-6-391(a)(1)), and DUI per se (OCGA §40-6-391(a)(5)).
- Collins sought the Intoxilyzer 5000 source code from the manufacturer in Kentucky under the Uniform Act; Georgia trial court authorized out-of-state proceedings and Collins pursued them but did not obtain unencumbered access to the code.
- Collins later told the Georgia court she had access to the source code, obtained a continuance to retain an expert, but ultimately did not inspect the code due to not signing a Kentucky protective order.
- At a stipulated bench trial the court found her guilty on all three counts but later merged the DUI per se count into the DUI less safe count for sentencing; Collins was convicted only of DUI less safe.
- On appeal Collins argued denial of due process/compulsory process for lack of source code, that breath evidence affected the DUI per se and required new trial, and ineffective assistance for failing to introduce source-code-related materials.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether forcing trial without full access to Intoxilyzer source code violated due process/compulsory process | Collins: trial court forced trial while she lacked source code, impairing her defense | State: Collins had court-ordered means to obtain code and did not avail herself; issue is moot as to per se count | Moot as to DUI per se; no harm to DUI less safe conviction because code evidence did not affect that finding |
| Whether denial of new trial was erroneous because breath evidence influenced convictions | Collins: breath results affected the DUI per se finding and warranted relief | State: trial court merged per se count; only less safe conviction stands, and breath evidence did not determine less safe finding | Denial affirmed; per se count moot and any error harmless to less safe conviction |
| Whether counsel was ineffective for not admitting source-code materials | Collins: counsel failed to introduce materials showing Intoxilyzer unreliability | State: any challenge relates only to per se count or is moot/harmless to less safe conviction | Ineffective-assistance claim fails as errors concern merged per se count and show no prejudice to less safe conviction |
| Whether breath-alcohol evidence required reversal of less safe conviction | Collins: BAC evidence influenced the court's less safe finding | State: impaired driving depends on observable impairment, not BAC; court expressly found BAC did not affect less safe verdict | Court held no prejudice; less safe conviction stands |
Key Cases Cited
- Slack v. State, 288 Ga. 659 (merger of convictions vacates one count)
- Darville v. State, 289 Ga. 698 (merger prevents multiple convictions)
- Pough v. State, 325 Ga. App. 547 (affirming less safe conviction where per se was vacated by merger)
- Durrance v. State, 319 Ga. App. 866 (challenge to count rendered moot by merger)
- Greene v. State, 312 Ga. App. 666 (errors tied to merged count are harmless)
- Evans v. State, 253 Ga. App. 71 (less safe determination depends on impairment, not BAC)
- Kitchens v. State, 258 Ga. App. 411 (harm where court specifically relied on BAC for less safe finding)
- Cronkite v. State, 293 Ga. 476 (defines Intoxilyzer source code relevance)
- Davenport v. State, 289 Ga. 399 (Uniform Act procedures for out-of-state evidence subpoenas)
- Yeary v. State, 289 Ga. 394 (out-of-state corporation may be material witness under Uniform Act)
- Young v. State, 324 Ga. App. 127 (applying Uniform Act to Intoxilyzer source code)