Phillips v. State
324 Ga. App. 728
Ga. Ct. App.2013Background
- On March 3, 2006, Phillips was stopped after erratic acceleration; officer observed signs of intoxication and arrest followed. Two Intoxilyzer 5000 breath tests recorded BACs of 0.138 and 0.127. Phillips was charged with DUI per se, DUI less safe, and laying drags.
- Defense moved (Jan 2008) to compel production of the Intoxilyzer 5000 computer source code from its manufacturer, CMI, and the trial court issued a certificate under the Uniform Act to Secure the Attendance of Witnesses from Without the State (OCGA § 24-10-94(a)).
- The Georgia certificate was sent to Kentucky; the Daviess County (KY) Circuit Court found the Georgia certificates defective, treated the source code as trade secret/confidential, and imposed conditions (including a protective order) while allowing limited in‑person review at CMI.
- Phillips filed appeals in Kentucky and sought more time; the Georgia trial court specially set trial, then required trial to proceed on Sept 13, 2012 after the Kentucky order denying broad production remained enforceable.
- At trial (bench), Phillips argued he lacked material evidence/witnesses from CMI (invoking compulsory process, Brady, and Confrontation Clause rights). The Georgia court convicted him of DUI per se; he appealed arguing the trial court erred by forcing trial without CMI materials.
Issues
| Issue | Plaintiff's Argument (Phillips) | Defendant's Argument (State) | Held |
|---|---|---|---|
| Whether Georgia trial court violated compulsory process by proceeding without CMI source code/witnesses | Trial court should have delayed trial until out‑of‑state materials/witnesses compelled via Uniform Act were produced | Georgia issued the certificate and complied; Kentucky court had exclusive authority to decide necessity and materiality under the Uniform Act; Georgia court could not compel beyond that | No violation; Georgia court properly issued certificate and could not force Kentucky to produce; Kentucky order controlling and entitled to full faith and credit |
| Whether failure to obtain CMI materials constituted Brady violation (due process) | Source code and related CMI materials were favorable, material, and suppressed by the State | Phillips failed to show State possessed or suppressed the materials or that results would likely differ | No Brady violation; Phillips did not meet the Brady elements |
| Whether proceeding violated Confrontation Clause by admitting Intoxilyzer results without CMI witnesses | Phillips argued he could not confront the Intoxilyzer (and CMI employees/documentation) | Intoxilyzer inspection certificates and machine output are non‑testimonial business records under Georgia law; Confrontation Clause not implicated | No Confrontation Clause violation; inspection certificate/test results are non‑testimonial and admissible |
| Whether trial court abused discretion in denying continuance | Needed continuance to await Kentucky appellate resolution and obtain source code | Court had granted time, issued certificate, and Kentucky order denied production; case had been pending years; no supersedeas of Kentucky order | No abuse of discretion; reasonable denial of continuance given record |
Key Cases Cited
- Davenport v. State, 289 Ga. 399 (Ga. 2011) (explains Uniform Act procedure and materiality/necessity inquiry for out‑of‑state witnesses/evidence)
- Brady v. Maryland, 373 U.S. 83 (1963) (establishes prosecution's duty to disclose favorable material evidence)
- Whorton v. Bockting, 549 U.S. 406 (2007) (addresses Confrontation Clause and testimonial statements)
- Smith v. State, 284 Ga. 304 (2008) (inspection certificate of breath instrument is non‑testimonial and admissible)
- Zant v. Moon, 264 Ga. 93 (1994) (discusses Brady standard elements)