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 § 24-10-94,1 to obtain, through the testimony of an out-of-state witness, the source code for the Intoxilyzer 5000, the device that was used to test his breath at the time that he was pulled over.2 The trial court denied the motion, finding that the evidence was not material, and, on interlocutory appeal, the Court of Appeals affirmed, concluding that the trial court did not abuse its discretion. See Cronkite v. State, 317 Ga. App. 57 730 SE2d 694 2012.
In reaching its decision, the Court of Appeals applied this Court’s decision in Davenport v. State, 289 Ga. 399, 404 711 SE2d 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 “some 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. 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.
