☢ test - Í

evidence of facts pointing to the actual existence of excess alcohol in the mouth at the time of Cronkite’s breath test that should have produced an error message from the Intoxilyzer 5000 that was not produced. Nor did Cronkite point to any other evidence of facts supporting the existence of a possible error in his specific breath test results such as discrepancies in the operation of the Intoxilyzer 5000 machine itself.” Final footnote raises a question for future cases: “the extent to which a trial court might (or might not) have some degree of discretion under former OCGA § 24-10-94(a) to issue a certificate in light of the use of the term ‘may’ in the statute (as the term could imply something other than unfettered discretion of the trial court in this context).” Accord, Young v. State , 324 Ga.App. 127, 749 S.E.2d 423 (October 4, 2013); Davenport v. State , 328 Ga.App. 850, 763 S.E.2d 130 (August 19, 2014); Holowiak v. State , 333 Ga.App. 606, 774 S.E.2d 229 (July 15, 2015). Spann v. State, 318 Ga.App. 740, 736 S.E.2d 749 (November 21, 2012). DUI conviction reversed and remanded for proper application of test for issuance of subpoena for out-of-state witness. “In this case, … the trial court's order establishes that the court did not apply the relatively minimal standard enunciated in Davenport [ (June 20, 2011), below, at 404], to determine whether Spann was entitled to a certificate of materiality under OCGA § 24–10–94 and thus a new trial. Instead, the trial court answered a different question: whether the Intoxilyzer 5000 was sufficiently reliable that expert testimony about its fallibility was unnecessary. The trial court found that the legislature has created procedural and testing safeguards to minimize the possibility of erroneous test results, that other safeguards were built into the trial process, such as a defendant's right to an independent test under the Implied Consent law, the admissibility of testimony that ‘would go to the weight of the evidence,’ and the fact that scientists and engineers on which expert opinions are based must be sufficiently qualified to attain publication.” This amounts to a finding that the witness was not necessary, not whether the witness was material. Davenport v. State, 289 Ga. 399, 711 S.E.2d 699 (June 20, 2011). Reversing 303 Ga.App. 401, 693 S.E.2d 510 (February 11, 2010) and defendant’s DUI conviction; contrary to Court of Appeals ruling, the Uniform Act for Attendance of Witnesses from Without the State (OCGA § 24-10-90 et seq.) does not require the trial court to determine if a witness is “a necessary and material witness to the case” before issuing process for that witness to appear from outside the state (here, from Kentucky, to produce the source codes for the Intoxilyzer 5000); rather, the trial court in Georgia is only to determine whether the witness is material, pursuant to OCGA § 24-10-94(a); it is up to the out-of-state court (here, in Kentucky) to determine whether “the witness is material and necessary.” Disapproves a line of Court of Appeals decisions holding to the contrary, including Chesser v. State, 168 Ga.App. 195, 196 (308 S.E.2d 589) (1983), Mafnas v. State, 149 Ga. App. 286(1) (254 S.E.2d 409) (1979), and Holowiak v. State , 308 Ga.App. 887, 709 S.E.2d 887 (March 29, 2011). As used in OCGA § 24-10-94(a), a “material witness” is “‘a witness who can testify about matters having some logical connection with the consequential facts, esp. if few others, if any, know about these matters,’ Black's Law Dictionary (8 th ed., 2004). Since the proper statute was not applied to this case, the judgment of the Court of Appeals is vacated and the case remanded to that court for proceedings not inconsistent with this opinion.” Nahmias concurs, suggesting that inability of defendants to obtain source codes for Intoxilyzer 5000 raises due process concerns regarding DUI – per se prosecutions. Hines writes for Carley in dissent, arguing that trial judge is in best position to determine whether witness is necessary, and that defendant here made no such showing here. Defendant here argued that her asthma may have resulted in inaccurate reading on machine, a claim Hines calls “at best, … speculative.” Applied, DiMauro v. State , 310 Ga.App. 526, 714 S.E.2d 105 (July 6, 2011) (DUI conviction affirmed on condition and remanded for application of Davenport . “If the court below determines that the witness for whom a certificate was requested is a ‘material’ witness, it then must consider whether it ought to have issued a certificate in this case, and if so, whether DiMauro is entitled to a new trial or a new trial conditioned on the issuance by the appropriate out-of-state court of a subpoena to compel the appearance of the witness in Georgia.”); Spann v. State , 310 Ga.App. 575, 713 S.E.2d 722 (July 6, 2011). Yeary v. State, 289 Ga. 394, 711 S.E.2d 694 (June 20, 2011). Reversing 302 Ga.App. 535, 690 S.E.2d 901 (February 10, 2010) and defendant’s DUI conviction; contrary to Court of Appeals ruling, the Uniform Act for Attendance of Witnesses from Without the State (OCGA § 24-10-90 et seq.) “authorizes a party in a criminal proceeding to seek purportedly material evidence from an out-of-state corporate entity without naming a person within the corporation as the witness to be summoned to Georgia.” A corporation is “a person” who may be subpoenaed within the meaning of the Act. Defendant here seeks source codes for Intoxilyzer 5000 from its Kentucky manufacturer. Holowiak v. State, 308 Ga.App. 887, 709 S.E.2d 887 (March 29, 2011). Per se DUI conviction affirmed; no abuse of discretion in declining defendant’s request to subpoena out-of-state witness to testify about Intoxilyzer source codes. “Although Holowiak noted that there were pending allegations in other states of ‘problems with the Intoxilyzer 5000