Yeary v. State
| Decision Date | 01 March 2010 |
| Docket Number | No. A09A1786.,A09A1786. |
| Citation | 690 S.E.2d 901 |
| Parties | YEARY v. The STATE. |
| Court | Georgia Court of Appeals |
Head, Thomas, Webb & Willis, Gregory A. Willis, Atlanta, for appellant.
Rosanna M. Szabo, Solicitor-General, Joelle M. Nazaire, Richard C. Armond, Assistant Solicitors-General, for appellee.
Lisa Ann Yeary was found guilty in a bench trial of driving with an alcohol concentration in excess of 0.08 grams in violation of OCGA § 40-6-391(a)(5). Yeary's conviction was based in part on evidence that she consented to a state-administered chemical breath test on an Intoxilyzer 5000 machine which showed that she had an unlawful alcohol concentration of 0.179 grams. Yeary claims her conviction should be reversed because the trial court erroneously denied her pre-trial motion seeking a ruling that the "source code" used to program the software in the Intoxilyzer 5000 machine on which she was tested was evidence relevant to her defense. For the following reasons, we find no error and affirm.
1. The stipulated evidence at the bench trial showed the following: A police officer made a lawful traffic stop of the automobile Yeary was driving and detected the odor of alcohol on Yeary's breath. Yeary failed to successfully complete field sobriety tests and registered positive for alcohol on a preliminary breath-screening device. The officer arrested Yeary for driving under the influence, read her implied consent rights, and obtained her consent to take a State-administered chemical test of her breath to determine her alcohol concentration. The breath test was administered on an Intoxilyzer 5000 machine approved for this purpose by the Division of Forensic Sciences of the Georgia Bureau of Investigation and operated by an officer certified by the Division to operate the machine. To carry its burden to show that the machine was operated with all its electronic and operating components attached and in good working order, the State produced certificates of inspections conducted on the machine before and after the test, and the testimony of the operator that the machine was operating properly when the test was conducted. Young v. State, 275 Ga. 309, 310, 565 S.E.2d 814 (2002); OCGA § 40-6-392(a)(1)(A), (f). The machine produced test results showing that Yeary had an alcohol concentration of 0.179 grams. The evidence was sufficient for the trial court to find beyond a reasonable doubt that Yeary was guilty of driving her automobile with an unlawful alcohol concentration in violation of OCGA § 40-6-391(a)(5). Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).
2. Prior to trial, Yeary filed a motion which sought a ruling from the trial court that the source code for the Intoxilyzer 5000 machine on which her breath was tested was evidence relevant to her defense. The written motion initially alleged that the source code was in possession of the state of Georgia and sought to compel production of the source code for inspection. Yeary subsequently amended the motion by alleging that the source code was possessed by CMI, Inc. (the corporation which manufactured the machine) located in the state of Kentucky. At the hearing on the motion, Yeary sought a ruling that the source code was relevant solely as a basis to facilitate court-ordered production of a digital version of the source code possessed by CMI in Kentucky. She sought production of the source code to examine it prior to trial for possible defects which she contends might have affected the accuracy of her breath test.
Yeary's attempt to gain court-ordered access to evidence she alleged is located in the state of Kentucky is controlled by the Uniform Act to Secure Attendance of Witnesses from Without the State (OCGA § 24-10-90 et seq.). The ...
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...citing Mafnas and Chesser ); Baines v. State, 201 Ga.App. 354(5), 411 S.E.2d 95 (1991) (citing Mafnas ). But see Yeary v. State, 302 Ga.App. 535, 537, 690 S.E.2d 901 (2010) (“the judge in this state must make certain findings under the Uniform Act, including a finding that the out-of-state ......
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Yeary v. State
...Richard Carter Armond, Asst. Solicitors–General, for appellee.ANDREWS, Judge. [314 Ga.App. 409] In Yeary v. State, 302 Ga.App. 535, 690 S.E.2d 901 (2010), we affirmed Lisa Ann Yeary's conviction in a bench trial for driving under the influence of alcohol in violation of OCGA § 40–6–391(a)(5......