Teresa Jean Spann was convicted following a bench trial of driving under the influence.1 She appeals, contending that the trial court erred by not allowing the issuance of an out-of-state subpoena pursuant to OCGA § 24-10-90 et seq., The Uniform Act to Secure the Attendance of Witnesses from Without the State Uniform Act, and by admitting evidence of a prior similar offense. 1. In her first enumeration of error, Spann challenges the trial court’s denial of her motion for issuance of an out-of-state subpoena to the CEO of CMI, Inc., the Kentucky corporation that manufactures the Intoxilyzer 5000 so that she could obtain the source code for that machine. The record shows that the trial court originally granted Spann’s request for the issuance of the out-of-state subpoena, based on a finding that production of the code was both necessary and material for Spann to challenge the accuracy of the results of the State administered breath test. However, citing this Court’s decisions in Davenport v. State , 303 Ga. App. 401 693 SE2d 510 2010 and Yeary v. State , 302 Ga. App. 535 690 SE2d 901 2010, the trial court subsequently vacated that order and denied Spann’s motion for issuance of the out-of-state subpoena, finding that Spann had failed to show that either the witness or the source code were necessary and material to the case.
The Supreme Court, however, recently vacated our opinions in Davenport and Yeary , finding, inter alia, that both trial courts and this Court have employed an improper standard in cases involving requests for issuance of an out-of-state subpoena by requiring a party to show that the out-of-state witness is both “necessary and material.” Instead, the Court held that pursuant to OCGA § 24-10-94 a, the trial court should make the initial finding concerning whether the witness is “material” and “whether the state in which that witness is located has laws ‘for commanding persons within its borders to attend and testify in criminal prosecutions . . ., in this state, . . . .’ ” Davenport , __Ga.__ slip op at 4-5. If the trial court finds those criteria are met, “ the Georgia trial judge ‘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. slip op. at 5. The judge of the out-of- state court may then hold a hearing to make certain findings, including whether the out-of-state witness is “material and necessary to the Georgia criminal proceedings,” and based on these findings, will then determine whether to issue a summons directing the witness to attend and testify in the Georgia proceedings. Id.
