Below is a recent motion that I drafted regarding discovery of documentation regarding the breath alcohol simulators used in the calibration checks for an Intoxilyzer 5000. If you take DUI breath test cases to trial in in Georgia, you will quickly realize that the State relies upon quarterly checks heavily (predominantly) in their effort to argue that the machine is accurate. The breath alcohol simulator is at the heart of the quarterly inspection. If it does not function properly, we cannot rely upon any of the conclusions drawn from the inspection.
IN THE MUNICIPAL COURT FOR THE CITY OF ATLANTA
STATE OF GEORGIA
STATE OF GEORGIA, :
vs. : Citation Nos. ——————
NOTICE TO PRODUCE AND MOTION FOR DISCOVERY OF DOCUMENTARY EVIDENCE REGARDING THE BREATH ALCOHOL SIMULATOR USED IN THE CALIBRATION CHECK OF THE INTOXILYZER BREATH TEST MACHINE
COMES NOW, Defendant in the above-styled case, by and through his/her counsel of record, and files this Notice to Produce and Motion for Discovery of Documentary Evidence Regarding the Breath Alcohol Simulator Used In the Calibration Check of the Intoxilyzer Breath Test Machine. In support of his/her Notice to Produce and Motion for Discovery, the Defendant respectfully shows this Honorable Court the following:
This motion is made pursuant to O.C.G.A. §§ 40-6-392 (a) (4), 24-10-26, 17-16-23, Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed 2d 215 (1963), Giles v. Maryland, 386 U.S. 66, 87 S.Ct. 793, 17 L.Ed2d 737 (1967), Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972), Moore v. Illinois, 408 U.S. 786, 92 S.Ct. 2562, 33 L.Ed.2d 706 (1972), Kyles v. Whitley, 514 U.S. 419, 115 S.Ct. 1555, 131 L.Ed.2d 490 (1995) and subsequent cases. The pre-trial information sought by the Defendant is critical to the defense in this DUI case, particularly as to the alleged “breath alcohol concentration number” possibly being placed before the the trier of fact.
Further, Defendant asserts his right of access to and production of the evidence sought by this motion both separate and independent federal Constitutional and the Georgia Constitution provisions. The federal Constitution establishes the “floor” for a citizen's rights under which no state may go “below”. The State Constitution provides additional rights which are more expansive. The Defendant raises all State Constitutional challenges as “independent state grounds” under the authority of Michigan v. Long, 463 U.S. 1032, 103 S.Ct. 3469, 77 L.Ed.2d 1201 (1983).
Every citizen charged with a crime in Georgia is guaranteed fairness by provisions of the United States Constitution that no person shall be deprived of life, liberty, or property without due process of the law. Furthermore, the Georgia Constitution contains similar provisions under the State's Constitutional Bill of Rights, based on separate and distinct enumerations of those rights.
One of the Georgia Bill of Rights states as follows: “Every person charged with an offense against the laws of this state…. shall be confronted with the witnesses testifying against such person” Georgia Const., Art. I, § I, ¶ XIV. Furthermore, under Georgia Const. Art. I. § I, ¶ XII, no person defending himself or herself shall be deprived of the right to fully prepare the case for trial. Finally, the State Constitution also guarantees basic fairness at a criminal trial in Georgia Constitution, Art. I, § I, ¶ I, where a person's life, liberty and property cannot be deprived by the State without Due Process of Law.
This Notice to Produce and Motion for Discovery seeks information required to be retained by the Georgia Bureau of Investigation according to the Division of Forensic Sciences Implied Consent Operations Manual, Equipment Inspections protocol (IC OPS 5, Dated: 8/12/2011, Rev. 2). See, Exhibit A, attached hereto.
The State is hereby requested to furnish the materials requested below which are in your present possession and to also inquire of law enforcement agencies, specifically the Divison of Forensic Sciences of the Georgia Bureau of Investigation, if any of the requested materials exist. See, Kyles v. Whitley, 514 U.S. 419 (1995), holding “that the individual prosecutor has a duty to learn of any favorable evidence known to the others acting on the government's behalf, including the police.”
Defendant moves to require the State through the Solicitor to produce for Defendant's inspection, any and all evidence exculpatory in nature within the meaning of the foregoing cases, including but not limited to:
- Documentation of the breath alcohol simulator serial number used in the attempt to validate the calibration of Intoxilyzer Serial No. 68-013386 during the calendar year 2012;
- Each and every certificate of inspection issued for the breath alcohol simulator used in an attempt to validate the calibration of Intoxilyzer Serial No. 68-013386 during the calendar year 2012;
- All electronic records of inspections for simulators used in an attempt to validate the calibration of Intoxilyzer Serial No. 68-013386 during the calendar year 2012;
- All records of adjustments for simulators used in an attempt to validate the calibration of Intoxilyzer Serial No. 68-013386 during the calendar year 2012:
- All records of removal from service for simulators used in an attempt to validate the calibration of Intoxilyzer Serial No. 68-013386 during the calendar year 2012; and
- All documentation and records of repairs performed upon simulator used in an attempt to validate the calibration of Intoxilyzer Serial No. 68-013386 during the calendar year 2012.
Defendant cannot safely go to trial, nor can Defendant's counsel adequately prepare for trial, without production of this evidence within a reasonable time prior to trial or any pre-trial hearings in this case; in the absence of such production, Defendant will be denied due process of law.
WHEREFORE, Defendant respectfully prays that:
- the State be required to produce for the Defendant said evidence within a reasonable time prior to trial or any pre-trial hearing;
- the Court conduct an in camera inspection of all such evidence, and of the State's entire file, and that Defendant's counsel be permitted to see, copy and reproduce all such evidence determined by the Court to be favorable to Defendant as to guilt or innocence or to be useful by Defendant in cross-examining or impeaching any of the State's witnesses against Defendant;
- that an exact copy be made of each and every such item not made available to Defendant, and that the same be sealed and included in the record of this case in order to insure proper review of the Court's denial of Defendant's requests for lawful disclosure.
The requested information regarding the Intoxilyzer 5000, Serial Number 68-013386, is exculpatory in nature or will potentially lead to exculpatory material for use in Defendant's defense of the DUI charge in this case. Constitutional due process rights and constitutional confrontation of evidence rights mandate the production of these items prior to trial so that Defendant has a meaningful opportunity to challenge the State's forensic evidence “results” produced by this device and to confront any assertion by the State and its witnesses that the device used in this case was accurately calibrated to produce a reliable result.
Respectfully Submitted this ____ day of ___________________, 2012.
D. Benjamin Sessions
State Bar No. XXXXXXXXXXX
Attorney for Defendant
CERTIFICATE OF SERVICE
I hereby certify that I have served a true and accurate copy of the foregoing notice to produce and motion for discovery by depositing same in the U.S. Mail with adequate postage affixed thereon to ensure delivery to:
The Office of the City of Atlanta Solicitor
150 Garnett St., 3rd Floor
Atlanta, Georgia 30303
This ____ day of ___________________, 2012.
D. Benjamin Sessions
State Bar No. XXXXXXXXXXX
Attorney for Defendant
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