—— Case Study — Appellate Defense
When the State Destroys Evidence,
We Fight All the Way to the Top
In Smith v. State, Greg Willis pursued a complex constitutional speedy trial challenge through multiple Georgia appellate courts — exposing how the State allowed 61 months to pass, destroyed material evidence, and still expected
a conviction to stand.
Case
Smith v. State
Court
Supreme Court of Georgia
Issue
Constitutional Speedy Trial / Evidence Destruction
Delay
61 Months – Arrest to Trial
Case Summary
The Short Version
Jason Smith was arrested for DUI in Atlanta in May 2007. By the time the State brought him to trial — more than five years later — police had no memory of the arrest, the State had destroyed the accident report, 911 calls, CAD records, and EMS reports, and a key piece of scientific evidence (the Intoxilyzer 5000 source code) remained out of reach in Kentucky courts. Greg Willis argued that Smith’s Sixth Amendment right to a speedy trial had been violated, and that the State’s destruction of evidence causedreal, irreversible prejudice to his defense. This petition to the Georgia Supreme Court pressed for dismissal — and exposed systemic failures in how the State handled this case from start to finish.
Background: A DUI Case That Took Over Five Years to Reach Trial
On the evening of May 5, 2007, Jason Smith was involved in an automobile accident on Interstate 20 in Atlanta. He was arrested for DUI less safe and DUI per se, and ultimately convicted only of the per se charge — based almost entirely on a single breath
test result from an Intoxilyzer 5000 machine.
The arrest itself was straightforward. The investigation concluded that same night. Yet trial did not occur until June 1, 2012 — 61 months after Smith’s arrest. By then, the case had become anything but ordinary.
-
May 2007
Smith arrested for DUI following accident on I-20. Investigation concluded same night.
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October 2008
Willis files Brady motion demanding preservation of all evidence, including accident report, CAD records, 911 calls, and EMS records. Also files motion to obtain Intoxilyzer 5000 source code from CMI in Kentucky.
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April 2009
State provides initial discovery — 11 days before first scheduled trial date, and 6 months after defense filed all discovery motions.
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October 2011
Trial court finally grants motion to authorize out-of-state subpoena for source code — four years and five months after Smith’s arrest. Kentucky court later dismisses the resulting Certificate of Materiality as “defective on its face.”
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June 2012
Trial proceeds without source code evidence and without the evidence the State had destroyed. Officers cannot remember basic facts. Willis renews speedy trial motion at trial. Smith is convicted on the per se count only.
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2013 – 2018
Case travels through Georgia Court of Appeals three times. Trial court ordered twice to make proper Barker v. Wingo findings. Willis files Petition for Certiorari to the Georgia Supreme Court in February 2018.
The Constitutional Issues: What Willis Argued
The legal heart of this case was the Sixth Amendment right to a speedy trial, analyzed under the four-factor balancing test established by the U.S. Supreme Court in Barker v. Wingo, 407 U.S. 514 (1972). Willis argued that
the trial court — on its third attempt to apply the test correctly — still got it wrong on every factor.
01
Length of Delay
61 months from arrest to trial in a misdemeanor DUI — where the investigation concluded the night of arrest — is presumptively prejudicial as a matter of law.
02
Reason for Delay
The State chose CMI as its sole breath-testing vendor, placing material evidence beyond Georgia’s subpoena power — then waited years before producing any discovery. The State, not Smith, caused the delay.
03
Assertion of Right
Smith could not meaningfully assert a speedy trial right while the State still possessed evidence it had not produced. Demanding trial before all requested discovery is obtained would be constitutionally nonsensical.
04
Prejudice
The State destroyed the accident report, 911 calls, CAD records, and EMS reports — all after Willis demanded their preservation. Officers could not remember basic facts at trial. Prejudice was actual, documented, and severe.
The Evidence Destruction: A Defense Dismantled Before Trial Began
The most damaging aspect of this case was what the State allowed to disappear. After Willis filed an explicit Brady motion in October 2008 — demanding preservation of all evidence, including anything the State did not consider exculpatory — the State nonetheless permitted the following to be destroyed in the “regular course of business”:
- The police accident report, containing Smith’s statements and witness contact information
- 911 calls from the accident, including witness statements made contemporaneously
- Computer Automated Dispatch (CAD) records documenting the timing of events
- Grady EMS records documenting treatment of Smith’s head injury at the scene
The consequences were on full display at trial. Officer Grimsley could not identify Smith in court. Neither officer could recall the time of the accident. Teague admitted his testimony about Smith’s position at the scene was contradicted by his own patrol car video. The CAD records — had they been preserved — would have allowed witnesses to testify accurately about the timeline. Instead, the jury heard guesswork and conflicting memories from officers who struggled to recall even the
most basic facts from that night.
“Of these [Barker] interests, the most serious is the last, because the inability of a defendant adequately to prepare his case skews the fairness of the entire system. If witnesses die or disappear during a delay, the prejudice
is obvious.”
Barker v. Wingo, 407 U.S. 514, 532 — cited in the Willis petition
The Source Code Battle
Parallel to the evidence destruction issue, Willis spent years pursuing the source code for the Intoxilyzer 5000 breath-testing machine — the very device whose single reading formed the basis of Smith’s per se conviction. CMI, the machine’s manufacturer,
is located in Kentucky. Because the State had contracted exclusively with CMI without securing access to this data, the source code was beyond Georgia’s subpoena power.
The trial court took four years and five months to grant the motion authorizing the out-of-state subpoena. The resulting Certificate of Materiality was then dismissed by the Kentucky court as “defective on its face.” Willis pursued the source code
diligently through Georgia trial courts, Georgia appellate courts, Kentucky circuit courts, and Kentucky appellate courts — as well as through direct negotiations with CMI through a mediating judge. The trial court’s decision to attribute
this delay to Smith was, Willisargued, a fundamental misreading of the record.
Why This Case Matters for Your Defense
Smith v. State illustrates several realities that every Georgia DUI defendant — and their attorney — should understand:
- The State’s obligation to preserve evidence does not depend on whether it considers that evidence exculpatory
- A Brady demand filed before arraignment is legally significant and must be honored throughout the pendency of a case
- Delays caused by the trial court’s own inaction — such as waiting years to rule on a pending motion — cannot fairly be attributed to the defendant
- The constitutional right to a speedy trial is a complete defense: if violated, the case must be dismissed, regardless of guilt or innocence
- Faded memories, missing records, and destroyed evidence all compound prejudice in ways that are not always apparent until trial begins
Appellate Posture
A Constitutional Argument Taken to Georgia’s Highest Court
Following two remands and three trips through the Georgia Court of Appeals, Willis filed this Petition for Certiorari to the Supreme Court of Georgia — arguing that the Court of Appeals had abdicated its duty to meaningfully review the trial court’s analysis,
and that the Barker balancing test, properly applied, required dismissal of all charges. This case reflects Willis Law Firm’s willingness to pursue constitutional arguments to the limit of the appellate process.
Facing a DUI Charge in Georgia?
Your constitutional rights don’t begin and end at the traffic stop. Greg Willis has spent decades fighting for clients at every stage — from suppression hearings to the Georgia Supreme Court.