Following a bench trial in Henry County, Nicholas DiMauro was convicted of driving under the influence of alcohol in violation of OCGA § 40-6-391 a 5, based on, among other things, stipulated evidence of the results of an Intoxilyzer 5000 breath test.1 DiMauro appeals, asserting that, because no officer read the Miranda 2 warnings to him before field sobriety tests were administered, the court below should have granted his motion to suppress evidence of the results of the field sobriety tests, as well as the Intoxilyzer 5000 breath test, which was administered later. DiMauro also contends that the court erred when it refused to issue a certificate under the Uniform Act to Secure the Attendance of Witnesses from Without the State the “Uniform Act”, OCGA § 24-10-90 et seq., to secure the appearance of a Kentucky witness to testify about the source code of the Intoxilyzer 5000. We see no error in the denial of the motion to suppress, and with respect to that claim of error, we affirm the judgment below. We conclude, however, that the trial court applied the wrong standard when it refused to issue a certificate under the Uniform Act, and we remand for the trial court to apply the correct standard, consider whether it should have issued a certificate, and if so, determine whether its refusal to do so entitles DiMauro to a new trial. The record shows that on November 15, 2009, at approximately 4:00 a.m., an officer observed DiMauro driving on I-75 at a speed of 96 miles per hour and initiated a traffic stop. When the officer first spoke with DiMauro, the officer detected an odor of alcohol. The officer then went to his patrol car and wrote a citation for speeding. When the officer later returned to DiMauro to issue the speeding citation, the officer again noticed an odor of alcohol and observed that DiMauro appeared confused and bewildered. The officer also saw that DiMauro had red and bloodshot eyes.
When asked whether he had consumed any alcoholic drinks, DiMauro at first denied that he had done so, but after he was asked to submit to a roadside breath test, he admitted that he had, in fact, consumed several. DiMauro agreed to take the roadside breath test, and it indicated the presence of alcohol. The officer then asked DiMauro to submit to two field sobriety tests, and DiMauro agreed. In the course of administering these tests, the officer noted that DiMauro lost his balance during the instructional phase of the walk-and-turn evaluation. Concerned that DiMauro might be impaired, the officer called for a second officer —one qualified to perform a horizontal gaze nystagmus “HGN” field sobriety evaluation, which the first officer was not —to come to the scene.
