Smith v. State
325 Ga. App. 405
Ga. Ct. App.2013Background
- Police responded to a car wreck and found Jason Smith being treated by paramedics near the vehicle; officers and a DUI investigator smelled alcohol and Smith admitted having "several drinks."
- Sergeant Teague conducted field sobriety tests, an alco-sensor test (positive), arrested Smith, read implied consent warnings, and transported him for breath testing.
- An Intoxilyzer 5000 breath test produced a first adequate sample of 0.126; a second attempt produced no adequate sample (machine timed out).
- Smith was charged with DUI per se (BAC ≥ .08 within three hours of driving) and DUI less safe; the State dropped the less-safe count and the bench trial court convicted on the per se count.
- Post-trial, Smith moved unsuccessfully to exclude the breath result on statutory and discovery grounds (including demand for Intoxilyzer source code) and sought a continuance pending a Kentucky court appeal; he also raised a speedy-trial claim later denied without Barker findings.
Issues
| Issue | Smith's Argument | State's Argument | Held |
|---|---|---|---|
| Sufficiency of evidence that Smith was driver and had BAC ≥ .08 within 3 hours | Evidence did not prove he was driver or that BAC was ≥ .08 within 3 hours | Testimony, smell of alcohol, admissions, timing of dispatch and Intoxilyzer reading supported conviction | Court: Evidence sufficient; reasonable factfinder could infer driver and BAC ≥ .08 within 3 hours |
| Admissibility of single Intoxilyzer sample when second sample inadequate under OCGA § 40-6-392(a)(1)(B) | First sample inadmissible because statute requires two qualifying samples within 0.020 | Trial court should decide reason second sample failed; prior cases allow first result if second attempt failed without showing refusal | Court: No clear error — first adequate sample admissible; credibility and reasons for second failure for trier of fact |
| Disclosure of Intoxilyzer source code as discovery under OCGA § 40-6-392(a)(4) / Brady | State constructively possessed source code or acted in concert with manufacturer; source code needed to test machine accuracy | State lacks actual access to CMI source code; no Georgia precedent requiring production; statutory scheme governs disclosure; no Brady showing | Court: State not required here to produce source code; defendant failed to show State possessed or suppressed favorable material; Division 3 not foreclosed entirely (concurrence notes different result if state-actor shown) |
| Request for continuance pending Kentucky appeal; and denial of speedy-trial motion without Barker findings | Proceeding before resolution of subpoena/appeal deprived Smith of compulsory process/due process; trial court should have continued and must make Barker findings on speedy-trial claim | Prior authority rejects waiting for out-of-state litigation; trial court did not err in proceeding; but Barker requires explicit findings when denying speedy-trial claims | Court: Denial of continuance/upholding prosecution timing affirmed; conviction affirmed but case remanded for entry of express Barker/Doggett findings on speedy-trial motion |
Key Cases Cited
- Barker v. Wingo, 407 U.S. 514 (establishes four-factor speedy trial balancing test)
- Doggett v. United States, 505 U.S. 647 (speedy trial prejudice and delay principles)
- Jackson v. Virginia, 443 U.S. 307 (standard for appellate review of sufficiency of the evidence)
- Thrasher v. State, 292 Ga. App. 566 (admissibility of first Intoxilyzer sample when second attempt inadequate)
- Blevins v. State, 291 Ga. 814 (circumstantial evidence and role of factfinder in assessing alternative hypotheses)
- State v. Smiley, 301 Ga. App. 778 (discussion of source-code issues in Intoxilyzer litigation; physical precedent only)