317 Ga. App. 57
Ga. Ct. App.2012Background
- Interlocutory appeal granted to review trial court’s denial of a certificate of need for testimony under OCGA § 24-10-90 et seq. (the Act) to obtain source code for the Intoxilyzer 5000.
- Cronkite sought out-of-state witnesses and various materials to evaluate the machine’s software, calibration, and potential errors affecting readings (.187 and .201).
- Trial court held the evidence sought was not material under OCGA § 24-10-94(a) and declined to issue a certificate, issuing no credibility findings beyond noting the witness was credible.
- Matthew Malhiot, a forensic breath alcohol consultant, testified about the device’s operation, calibration, and the role of software, including the possibility of errors, but had not examined the source code.
- Georgia Supreme Court affirmed, distinguishing materiality from admissibility and concluding Malhiot’s testimony was speculative and insufficient to show materiality under Davenport’s standard.
- Dissent argued the trial court abused its discretion, asserting the source code could have direct bearing on the test’s accuracy and constitutional rights to compulsory process.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Is the source-code testimony a material witness under OCGA 24-10-94(a)? | Cronkite argues the code controls calibration and errors, thus is a material witness. | Cronkite argues not material based on the testimony; the trial court rejected materiality. | No abuse of discretion; not material. |
| Does Malhiot’s speculative testimony establish materiality of the source code? | Even speculative evidence of possible errors supports materiality. | Speculation cannot establish materiality; evidence must show a factual basis for an error. | Testimony insufficient to prove materiality. |
Key Cases Cited
- Davenport v. State, 289 Ga. 399, 711 S.E.2d 699 (2011) (2011) (defines material witness as one who testifies about matters having logical connection to consequential facts; governs materiality standard)
- Layfield v. Dept. of Transp., 280 Ga. 848, 850, 632 S.E.2d 135 (2006) (2006) (admissibility vs. materiality; speculative testimony not probative)
- Yeary v. State, 289 Ga. 394, 711 S.E.2d 694 (2011) (2011) (discusses movant identification of material witnesses and related standards)