MOTION FOR FULL INFORMATION ON THE INTOXILYZER 5000

Comes now, the Defendant in the above matter and moves this Court to require the State to provide "full information" regarding the blood alcohol test administered on him via the Intoxilyzer 5000.

Your Defendant shows that failure of the State to provide the Defendant with a copy of the source code (program language) of the Intoxilyzer 5000 should cause the State to lose the right to introduce the results of said blood alcohol test in the State's case in chief at trial.

Your Defendant shows that the Intoxilyzer 5000 operates on a computer program written by the manufacturer and that it has numerous patches to adjust for erroneous readings of the machine and to determine if this is the machine which was approved by the Department of Forensic Sciences for use in Georgia.

The Defendant is entitled to review the source code of the computer program for the Intoxilyzer 5000 so that the Defendant's expert can review same and testify at trial regarding the faults of the program for said machine. Bazemore v. State, 244 Ga. App. 460 (2000). The Bazemore decision upholds the Defendant's right to "full information" on the scientific test performed on him and the Defendant argues that the source code (program language) must be provided to him in order to comply with OCGA 40-6-293 (a)(4).

In the case of Hough v. State, and State v. Handschuh, 279 Ga. 711, (October 3, 2005), the Georgia supreme Court stated, "where the language of a statute is plain and susceptible to only natural and reasonable construction, courts must construe the statute accordingly. In fact, where the language of the statute is plain and unambiguous, judicial construction is not only unnecessary but forbidden." Abkulkadlr v. State, 279 Ga. 122, (2005).

Your Defendant argues that the above statute must be strictly construed and that information about the source code of the Intoxilyzer 5000 must be provided by CMI, or the State should be prohibited from referring to the results of the breath test administered to this Defendant on said machine.

Further, the State of Florida has held that the State's failure to provide "full information", i.e., source code, or program language for the Intoxilyzer 5000, results in the suppression of the results. Please see State of Florida v. Timothy Muldowny & William E. Pitts, 831 So.2d 911, (February 27, 2004), Docket No. 5D02-4035. The Florida Fifth District Court of Appeals held as follows: "Section 315.1932(1)(f)(4), Florida Statutes (2002), requires that when a person tested with a machine request it, full information concerning the test is to be made available. It must necessarily follow that when a person risks the loss of driving privilege or perhaps freedom based upon the use and operation of a particular machine, full information included operating manuals and schematics in order to determine whether the machine actually used to determine the extent of a defendant's intoxication is the same unmodified model that was approved pursuant to statutory procedures. It seems to us that one should not have privileges and freedom jeopardized by the results of a mystical machine that is immune from discovery, that inhales breath samples and that produces a report specifying a degree of intoxication."

The Florida court further set forth a certified question, "Is Defendant entitled to inspect and copy and potentially use at trial or hearing the operator's manuals, maintenance manuals and schematics of the Intoxilyzer used to test the Defendant when the results of the test are intended for use to affect the driving privileges of or assess penalties against that Defendant?" The Court of Appeals answered that question in the affirmative.
Wherefore, your Defendant shows that his freedom, ability to enjoy life, maintain a job, and support his family all hinge upon him being able to fully and professionally cross-examine the State's witnesses regarding the source code or program language for the Intoxilyzer 5000, in order to question the manufacturer, or its representative, regarding the test results and or to draw conclusions regarding the adequacy and accuracy of the test results obtained by breath alcohol testing on the Intoxilyzer 5000.

Your Defendant further shows that the denial of his request for this information would be a denial of due process and respectfully shows the court that the motion should be granted for the reasons set forth herein.

Respectfully submitted,
XYZ Attorney

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