With the adoption of the Intoxilyzer 9000-series in Georgia, DUI defense attorneys should consider the source code challenge to breath tests taken by the Intoxilyzer. I was heavily involved in the source code challenge to the Intoxilyzer 5000-series of machines. In fact, I argued the Cronkite case to the Georgia Supreme Court. However, what we continually ran into in was that a lack of information/data inhibited our ability to meet the standard for “materiality” set forth by the Georgia Supreme Court in Cronkite.
So, what standard did Cronkite establish for those seeking out-of-state subpoenas?
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 *479 code and any consequential facts in his case that would have made the out-of-state witness' testimony regarding the source code “material” here.
Cronkite v. State, 293 Ga. 476, 478-79, 745 S.E.2d 591, 593 (2013), reconsideration denied (July 24, 2013).
What we are seeing now are chromatograms of our client's breath samples that do not look at all what we thought acceptable breath samples would look like. We are seeing breath samples for tests performed on Intoxilyzer 9000-series machines that sharply spike upward and sharply decline. In many tests, there is no sharp increase and plateauing of the samples. This contradicts what we were previously told a breath sample looks like.
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