Holowiak v. State

Whether a witness is material is the standard that trial courts should apply when considering whether to issue a certificate under the Uniform Act to Secure the Attendance of Witnesses from Without the State.

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InHolowiak v. State, 308 Ga. App. 887 709 SE2d 39 2011, we affirmed the trial court’s denial of Nicholas Holowiak’s motion for new trial following his jury conviction for driving under the influence of alcohol per se in violation of OCGA § 40-6-391 a 5. In Holowiak v. State Case No. S11C1190 decided September 6, 2011, the Supreme Court granted Holowiak’s petition for certiorari and remanded the case to this Court “for reconsideration in light of this Court’s decision in Davenport v. State, 289 Ga. 399 711 SE2d 699 2011.” Holowiak had sought an out-of-state subpoena under the Uniform Act to Secure the Attendance of Witnesses from Without the State for a representative of CMI, Inc., the supplier of the Intoxylizer 5000, to produce the software source code of the Intoxilyzer 5000 for inspection. Holowiak, 308 at 890 2. The trial court denied the request, finding that Holowiak did not carry his burden of showing that the subpoena was “material and necessary” to the case, and we affirmed on that basis. Id. at 891.

In Davenport the Supreme Court held that “necessary and material” is not the standard that a trial court should apply when it considers whether to issue a certificate under the Uniform Act. Davenport, 289 Ga. at 401. The trial court must first determine whether a witness is “material,” and if a witness is material, the trial court “may issue a certificate under seal that is then presented to a judge of a court of record in the out-of-state county in which the witness is found.” Id. The out-of-state judge then determines whether to issue a summons directing the out-of-state witness to testify in Georgia. Id.

Holowiak v. State

Whether a witness is material is the standard that trial courts should apply when considering whether to issue a certificate under the Uniform Act to Secure the Attendance of Witnesses from Without the State.

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