The Thomas & Willis, LLC is pleased to announce that Attorney Willis
has won a landmark reversal in Georgia Supreme Court on a critical distinction
between evidence and hearsay. Not only has this decision secured a new
trial for Mr. Willis' client, but also sets an important precedent
in interpreting Georgia’s newest Evidence Code laws.
The decision stems from an April 5, 2012 incident in which Attorney Willis'
client, Jason Parker, was stopped for speeding. Mr. Parker subsequently
was arrested for DUI after law enforcement detected a faint odor of alcohol.
At the local sheriff's office, Mr. Parker submitted to a breathalyzer
test, which registered a 0.158 blood alcohol content (BAC) reading.
The state’s prosecution moved forward with its DUI charges against
Mr. Parker, but, now under the counsel of Attorney Willis, the defense
moved to seek testimony from of an out-of-state witness. In December 2012,
Attorney Willis filed motion to receive out-of-state witness certificates
to secure computer program coding from CMI, Inc., the manufacturer of
the Intoxilyzer 5000 —the device used to establish Mr. Parker’s
BAC the night of his arrest. Attorney Willis argued that because the evidence
against Mr. Parker relied greatly on the Intoxilyzer 5000 reading, the
accuracy of the device should be questioned in court.
Challenging the Intoxilyzer 5000
The court considered Georgia’s new Evidence Code, which would go
into effect in just a few weeks, at the start of 2013. Because the new
laws would allow for evidentiary hearing, the state granted one and held
it in February 6, 2013. Attorney Willis provided past testimony, articles,
and affidavits from Thomas E. Workman, Jr, a computer code expert, who
had in the past testified to the inaccuracy of the Intoxilyzer 5000.
theNewspaper.com, the Intoxilyzer 5000 has become an infamous device:
- It is responsible 300 DUI conviction reversals in Washington D.C.
- Virginia spent $1.8 million to replace the device because of its inaccuracy.
- Ohio and Minnesota courts have ordered breathalyzer manufactures to turn
over software code to avoid similar inaccuracy issues.
Attorney Willis hoped to have the court compel CMI, Inc. to hand over its
Intoxilyzer 5000 software coding to further assert the device’s
inaccuracy. The prosecution, however, objected to documents as hearsay,
largely due to CMI, Inc.’s out-of-state status. The court agreed
and excluded the documents from consideration and considered no CMI, Inc.
software code or witnesses. Mr. Parker was found guilty and, on appeal,
the conviction was upheld. The appeals court ruled that an evidentiary
hearing was a “fact-finding proceeding” under the new evidence
code and hearsay rules still apply.
Consideration from the Georgia Supreme Court
Attorney Willis then brought the case to the Georgia Supreme Court and
put forth that because CMI, Inc.’s software code and testimony would
be material to the one key piece of evidence that convicted Mr. Parker,
it should be admissible in court and not simply ruled as hearsay. In the
Georgia Supreme Court’s
22-page ruling, the court carefully considers at what point in the judicial process testimony
from out-of-state witnesses should be compelled and reviewed for relevance
and precedents set by federal evidence laws—which the new Georgia
Evidence Code was designed to emulate.
Ultimately, the Supreme Court agreed with Attorney Willis: hearsay evidence
should be allowed in evidentiary hearings and—in the case of subpoenaed
out-of-state witnesses—only later be ruled as material and credible
after testimony is given. This means that Mr. Parker’s trial lacked
crucial evidence and was ruled invalid. As the Georgia Supreme Court wrote
in its decision, “The Court of Appeals should have vacated Parker's
convictions and the order denying his motion for material witness certificates,
reversed the trial court's exclusion of Parker's proffered documents,
and remanded the case to the trial court with direction to issue a new
order on Parker's motion.”
Persisting for the Truth to be Heard
Attorney Willis’ insistence that CMI, Inc.’s computer code
should be considered in Mr. Parker’s case was unanimously agreed
up on all seven Georgia Supreme Court justices. They knew, just as Mr.
Willis did, that presenting that evidence was in the best interest of
a fair trial, even if the Georgia Evidence Code seemingly did not allow for it.
Mr. Parker’s new criminal trial is still forthcoming, but this time
it will benefit from the consideration of all material evidence due to
Attorney Willis’ dedication, perseverance, and incisive understanding
of both state and federal law. We congratulate Attorney Willis on his
tremendous victory in his case.
If you or a loved one has been charged for a DUI and want to explore your
defense options, then we urge you to
contact us at the Thomas & Willis, LLC. A knowledgeable and experienced Atlanta
DUI defense attorney is ready review your case and ensure that your rights