In connection with his DUI prosecution, Weston D. Cronkite filed a motion under the Uniform Act to Secure the Attendance of Witnesses from Without the State, former OCGA § 24-10-94,
In reaching its decision, the Court of Appeals applied this Court's decision in Davenport v. State, 289 Ga. 399, 404, 711 S.E.2d 699 (2011), which also dealt with a defendant seeking evidence relating the source code of the Intoxilyzer 5000, and established that a "material witness" under former OCGA § 24-10-94 is "a witness who can testify about matters having some logical connection with the consequential facts." The Court of Appeals concluded that Cronkite's expert's testimony amounted only to speculation that the Intoxilyzer 5000 software contained an unknown flaw that could have affected the test results and thus failed to establish the materiality of the source code. The Court of Appeals stated that, although the expert was not required to demonstrate an error in the source code, the expert was required to testify to "some fact indicating the possibility of an error in this case," as "[s]ome evidence of such an error [in the source code] is the consequential fact that would render testimony regarding the source code logically connected to the issue presented here." Cronkite, supra, 317 Ga.App. at 60, 730 S.E.2d 694. This Court granted Cronkite's petition for certiorari to determine whether the Court of Appeals properly applied Davenport, supra. For the reasons that follow, we affirm.
As an initial matter, we must state that, while we agree with the bottom line of the Court of Appeals' decision, we do not agree with its analysis. Specifically, although the Court of Appeals properly recognized, as this Court stated in Davenport, that a "material witness" is "a witness who can testify about matters having some logical connection with the consequential facts" of
Here, the parties stipulated that Cronkite has a surgical implant in his upper teeth and a retainer on his lower teeth. Cronkite contends that the implant and retainer can allow alcohol to remain present in the mouth, and, in this regard, his expert testified that the Intoxilyzer 5000 software is designed to generate error messages in certain circumstances where an erroneous reading may occur, including circumstances involving the presence of alcohol in the mouth. However, Cronkite presented no evidence that mouth alcohol was present during his breath test such that an error message should have been generated that was not generated. Indeed, the mere possibility that alcohol can remain present in the mouth due to the existence of a surgical implant and retainer does not amount to evidence of facts pointing to the actual existence of excess alcohol in the mouth at the time of Cronkite's breath test that should have produced an error message from the Intoxilyzer 5000 that was not produced. Nor did Cronkite point to any other evidence of facts supporting the existence of a possible error in his specific breath test results such as discrepancies in the operation of the Intoxilyzer 5000 machine itself. See, e.g., State v. Bastos, 985 So.2d 37, 43 (Fla.App.2008) (witness who would have testified regarding source code for Intoxilyzer 5000 in DUI case was not a "material witness" where defendant failed to make "particularized showing demonstrating ... observed discrepancies in the operation of the [Intoxilyzer 5000] machine [that] necessitate[d] access to the source code"). Thus, he made no logical connection between possible problems in the source code and any consequential facts in his case that would have made the out-of-state witness' testimony regarding the source code "material" here.
Accordingly, we agree with the Court of Appeals that, under the standard established in Davenport and under the facts of this case, the trial court did not abuse its discretion in concluding that the witness sought by Cronkite to provide evidence regarding the source code for the Intoxilyzer
All the Justices concur.
Cronkite v. State, 317 Ga.App. 57, 58, 730 S.E.2d 694 (2012).
(Emphasis supplied.) See also current OCGA § 24-13-94(a). While we specifically decline to reach any issue regarding the extent to which a trial court might (or might not) have some degree of discretion under former OCGA § 24-10-94(a) to issue a certificate in light of the use of the term "may" in the statute (as the term could imply something other than unfettered discretion of the trial court in this context), we nevertheless believe that it is important to alert the bench and bar to this issue.