Tactics in Georgia DUI Cases

Defendant and his brother wrapped up a July 4th outing and night of fun by dropping off three other friends and then driving 88 mph through northern Dekalb County.

A state trooper saw the car, gave chase at speeds topping 110 mph, and obtained a Vascar reading of 88.5 mph. After beginning to ticket Defendant, the officer testified that he noticed the smell of an alcoholic beverage, and "asked the Defendant if he would consent to some voluntary field tests."

At pre-trial motions hearings, I had questioned the officer about the field sobriety tests and the "time" between the arrest and the testing on the Intoximeter 3000. The officer testified under oath at both the motion hearing and at trial that he had waited at the Doraville police station for 20 minutes before testing Defendant. He testified that if he had not done that, his breath test result would not be reliable. (Defendant later testified that he was walked straight in to the Doraville station and placed at the machine with no observation period.)

We subpoenaed the tow truck records to show that the arresting officer's version was impossible, since the trooper had also sworn that he waited for the tow truck to leave the scene before transporting Defendant. Indeed, the tow truck records showed the officer's signature authorizing the tow of the vehicle.

Defendant's brother (who had been a passenger) also testified that the trooper stayed until the car was towed. The arresting officer also testified that it took 8 to 10 minutes to get to Doraville PD from the arrest site on Peachtree Industrial just outside I-285. A test result of 0.11% was obtained by the arresting officer, who was a certified Intox 3000 operator.

The officer also testified that he had given correct implied consent advisements, despite the Defendant's testimony that no card was read to him at the scene at all.

To create reasonable doubt about the reliability of the 0.11% result, we subpoenaed Georgia State Trooper TFC Jack Denny of the Calhoun, GA post. Denny was one of three area (North Georgia) supervisors for the Intoximeter 3000. He trained officers on breath testing protocol and procedure. He serviced and maintained breath machines for the GBI.

He testified that due to the lack of 20 minutes of direct observation, that the test result was unreliable. He also stated that the "observation" procedure followed by the arresting officer violated training for breath testing operators. Rick Swope, of Davie, FL, who is certified on the Intox 3000 and the Intoxilyzer 5000 confirmed that the waiting period was absolutely essential to obtain reliable breath test results.

We also benefited from discreditment created by the officer testifying at the motion hearing 18 days earlier that he turned the Defendant away from oncoming lights and the blue strobes to do the HGN test. At trial he changed this, and under cross-examination, admitted that he had testified falsely under oath.

To add credibility to the defense version of the facts, we brought in three fact witnesses who testified (1) that Defendant had consumed very little alcohol, and none at all for more than three hours prior to the stop, (2) that Defendant had suffered from and been medically treated for gastric problems, and that he took prescribed medication for the stomach malady, and (3) that the Defendant had driven more than 70 miles around Atlanta, without incident and without speeding, prior to the 88 in a 55 that got him pulled over.

To bolster the Defendant's personal credibility, we brought in two respected businessmen who knew Defendant's reputation for truthfulness in the community. These character witnesses were pillars of the community.

Although brief, their testimony established Defendant as a truthful person, compared to the trooper, who testified forcefully and without flinching, even when he was lying under oath.

The coup de grace came from the subpoenaed Doraville video surveillance cameras within the jail and outside the building, in the parking lot. This showed the trooper driving up to the building, taking the Defendant out immediately and walking straight to the Intoximeter 3000, where the test was administered less than 4 minutes after arriving.

Defendant was found "not guilty" of both the per se and the "less safe" DUI counts. We had not challenged the speeding citation.

Before I go any further, let me tell you that I'm not promising that I can do the same in your case. That would be unethical. Every situation is different.

That was pretty interesting , wasn't it?

Let me give you another example.

At 1:00 a.m., my client was travelling east on Holcomb Bridge Road. He was driving a Honda Prelude. As he went down a hill and rounded a curve, his car hit the curb and the airbags were deployed. A person who lived in a nearby apartment complex called the police.

The police arrived and spoke with my client. The first officer testified that he did not notice anything odd about my client's speech or appearance.

A DUI Task Force officer showed up at the scene and determined that my client had thick and slurred speech, was unsteady on his feet , and watery eyes. The officer did not perform any field tests because of the impact with the airbag. My client was arrested and given a state breath test on which he blew a .117 and .112.

At trial, we used an expert witness to testify that the breath test results were incorrect because of the impact with the airbag. The DUI officer testified that the manifestations he observed may have been caused by the accident and not alcohol. This was a difficult case, however the verdict was not guilty on two counts of DUI and guilty to failing to maintain lane.

At 3:30 a.m., my client was travelling on a wet road. His car went around a corner and he lost control of his Jeep Cherokee. His car could not be driven from the scene.

A police officer responded to the wreck. She determined that he was too drunk to perform field sobriety evaluations. She arrested him for DUI and drove him to the pre-trial detention center. He was then read the implied consent notice.

He submitted to the Intoxilyzer 5000 and blew .178 and .182. At a motion to suppress hearing, the arresting officer testified that it is her usual practice to read the implied consent warning at the scene, in this case, she could not honestly testify if she read the warning at the roadway. The trial court suppressed the test result.

Following the suppression of the state test, the State offered Defedant a lesser plea to reckless driving. Defendant accepted the state's offer and kept a DUI off of his record

Case 22
State v. A.M.
Gwinnett Recorder's Court
Lawrenceville, Georgia

A.M., a teenage female, had been out to dinner with a friend at O'Charley's Restaurant.  She had consumed alcohol there after her dinner, before taking her friend home.  On her way home a deer ran into the roadway and, in attempting to avoid hitting the deer, hit the concrete median, causing damage to her car.  A car behind A.M. stopped to help, but fluids were leaking out of the car.  A.M. left the car at the scene and got a ride with a neighbor of her friend to her friend's house.   There, A.M. called her parents and told them of the accident.  Her father drove straight to the scene, and her mother drove in the other family car to A.M.'s friend's house to pick her up.  A.M. and her mother arrived back to the scene of the accident, arriving more than an hour after the initial wreck.  A.M. saw her father talking with two officers at the scene.

The officer asked A.M. if she had been drinking, and she replied 'no'.  She explained that she swerved to avoid the deer and hit the median.  The officer then insisted that she perform the field sobriety tests.  A.M. was very agitated by this request.  She was already upset about the accident and the damage to her car. A.M. asked if she could have an independent blood test taken instead taking breath tests.  The officer said 'no'.  As a result of the officer's answer and after being advised that her driver's license would be taken for one year if she refused, A.M. felt she didn't have a choice.  She was arrested and later blew into the Intoxilyzer 5000 and gave a result of more than 0.16% grams on both tests.  Even at the station, A.M. repeatedly asked for and was refused an independent blood test.  She was crying, upset and verbally combative with the officers.

We submitted the case as a bench trial to the Recorder's Court judge, fearing that a Gwinnett jury would not be sympathetic to an underage driver who was drinking.  At trial, we proved that the officer failed to read A.M. her Miranda rights before her field tests, despite knowing that she was underage and that alcohol 'possession' (much less DUI) was a criminal offense for which arrest was imminent.  In addition, the officer had no knowledge of whether or when A.M. had actually driven the vehicle, nor how long it had been since that driving ended.  The officer also lacked any knowledge of whether the alcohol was consumed before the accident.  It appeared that the officer, upon finding the teenage girl with alcohol on her breath, just jumped to a lot of conclusions which he could not prove at trial.

We proceeded with a bench trial and A.M. was found not guilty on all counts of DUI, but found guilty to lane violation.  She paid a $75.00 fine.

Case 23
State v. C.M.
Gainesville Municipal Court
Gainesville, Georgia

The Defendant, C.M., met her supervisor and his wife at the Gainesville Holiday Inn at around 7:00 p.m..  Here they had two glasses of wine and then the supervisor took them to dinner at an Atlanta-area Longhorn Steak House.  Here, C.M. had a full steak dinner, potato, bread and salad for dinner as well as a 1-1/2 glasses of wine.  Late in the evening, she had one final after dinner cocktail with her supervisor and his wife.  She rode with her supervisor, the 30 miles back to her car at the Holiday Inn in Gainesville.

C.M. got her car at 12:45 a.m., and was pulled over seconds later by a female officer with the Gainesville police department.  A second car and its male officer quickly arrived at the scene.  The second (male) officer approached C.M.'s vehicle and explained to her that she had been pulled over by the female lieutenant for 'weaving' and asked whether or not she had been drinking.  C.M. replied, 'Yes, at dinner, but that's all.'  Then the female lieutenant departed, leaving the patrol officer at the scene.  C.M. performed two requested field sobriety tests:  the walk and turn and the one leg stand.  The walk and turn test was requested despite the absence of a visible line to follow.  Moreover, no demonstration was given by the officer, as was required by field sobriety training.

Following the two tests, C.M. was placed under arrest for DUI and the officer began to handcuff her.  C.M. was indignant that she was being arrested.  She requested a phone call, but the officer refused.  The officer then began to read the implied consent warnings, but did so improperly, and asked C.M. if she would take a blood test.  Unsure of what she should do.  C.M. replied, 'Not at this time' and again requested a phone call.  The officer again refused to let her make a phone call. The officer threatened her with loss of her license for one year if she refused.  She finally relented to the coercion and submitted to the test requested by the officer.

Next, the male officer took CM to the hospital for blood to be collected.  There, he asked her to sign a consent document.  In order to read the document she was asked to sign, she needed her glasses.  He would not retrieve her glasses, and once again refused her request.  He contended that it did not matter whether or not she signed the consent form because she had verbally consented at the arrest site.

C.M. was given the blood test, and then taken to jail.  She was given no 'results' at that time, since the blood is only drawn at the hospital, not analyzed there.  The GBI does the analysis at a later date.

While in jail, the officers and attendant made it extremely difficult for C.M. to make any phone calls to get in touch with family and legal counsel.  There was no phone directory available to her and the phone was defective.  Numerous calls never went through.

After reviewing all facts of the case, a decision was made to go to trial.  The GBI blood test came back at 0.08%, and the legal limit at the time was 0.10%.  The prosecutor wanted to proceed with the case anyway, so a bench trial at Gainesville Municipal Court was chosen.

The original arresting officer testified that she had observed C.M. for approximately one mile after C.M. made a wide turn and changed lanes without using a signal.  However, the officer also testified that 'no other driver's safety was compromised by C.M.'s driving conduct that evening.' 

A recent case from the Georgia Court of Appeals was cited by Mr. Head as authority for the judge to acquit C.M. for this offense.  In addition, we proved at trial that C.M. was given an inaccurate and insufficient implied consent warning.  Our argument to the judge was that the method of advising C.M. of her rights was coercive and overbearing.  We also proved that the officer failed to conduct the field sobriety tests in the 'standardized' and approved manner

We further proved that C.M., a woman in her 50's, was dressed in a long skirt and was wearing dress 'heels', which made physical dexterity tests more difficult.

After all evidence was heard, the judge found C.M. not guilty of all charges.

Case 24
State v. W.M.
Fayette County State Court
Fayetteville, Georgia

The Defendant, W.M., had three glasses of wine at home in Peachtree City one evening.  He had the wine with dinner and later completed some paperwork related to his job.  The next morning, at approximately 4:30 a.m., W.M. awoke and began doing paperwork and cleaning the house.  Noticing the wine that was left over from the previous night, W.M. poured the remainder into a glass and discarded the bottle.  W.M. finished that glass of wine by 9:15 a.m..

At 9:30 a.m., W.M. ran some errands, including a stop at the grocery store.  Then, at noon, W.M. and his wife had lunch and watched the start of a college football game.  Over this period of time, they consumed several glasses of wine at their home.

Later that evening, around 4:30 p.m., W.M. decided to mow his lawn.  He had a riding lawn mower since the lawn was over an acre in size.  W.M. was trying to cut the grass along a muddy/sloping area of the lawn.  The lawn mower began to lose traction and began to slide down the hill, tipping over the mower and throwing W.M. from it.   The mower rolled over with the metal engine housing striking W.M. in the head.  He was knocked unconscious.  When W.M. woke up, he was being attended to by some passing motorists.  The blow to his head had caused short-term memory loss and confusion.  Fortunately, the blade of the mower stopped when the rollover occurred. 

When emergency personnel were called, so were the Peachtree City police.  A sergeant on the DUI task force arrived and began questioning W.M. about the accident and asking 'how much alcohol' had been consumed.  W.M. was, at first, incredulous that he was being investigated for DUI while all this was occurring.  Then he was arrested and taken to jail for suspicion of DUI.

We subpoenaed the sergeant's videotape and it revealed a very confused and incoherent W.M. who was speaking in a jumbled, rambling way.  It also showed the officer laughing and ridiculing W.M. about his alleged 'intoxication'.  The officer seemed to ignore W.M.s head injury or its ramifications.

With this bizarre set of facts and being somewhat disturbed by the officer's conduct, W.M. refused all tests and remained silent.

The next day, after experiencing severe pain, W.M. went to see a doctor.  His doctor diagnosed him with a mild concussion and muscle and tendon damage to his neck and shoulder.

In preparing the defense for the case, the goal was to get the DUI dismissed on the grounds that the officer had no probable cause to arrest W.M. for DUI.  The officer never even saw him on the lawn mower.  This was successful prior to trial.  The DUI was dropped entirely.  Instead, W.M. plead guilty to 'reckless conduct' (not a motor vehicle offense) and paid a $500.00 fine ($400.00 plus surcharges).  No trial was required as a result of this negotiated plea.  No 'points' were put on the driving record of W.M..

By resorting to the videotape footage, we were able to show the officer's behavior.  In addition to his 'attitude' toward W.M., he improperly read the implied consent warning which was prerequisite to being able to legally request a breath, blood or urine test.

Case 25
State v. T.M.
Smyrna Municipal Court
Smyrna, Georgia

The Defendant, T.M., had only been back in town for a week, having been relocated to the Atlanta area by his employer.  He had previously lived in the Atlanta area before moving away at his employer's request.  He was extremely happy to be home and had plans to catch up with many of his old buddies.  One night, he invited some of them over to his newly purchased home.

After visiting a short time, they departed for Chili's on Barrett Parkway.  At this point, it was about 8:00 p.m.. Over dinner they each consumed a couple of 22-ounce beers and then went to another friend's house in Acworth at around 10:00 p.m..  There, T.M. had 2 Coors Light beers.  Following that, T.M. went to meet other friends at Player's Billiards on Windy Hill Road at around 11:30 p.m..  There, he shot a couple of games of pool and drank a couple of beers.  The two men stayed until the pool room closed and even lingered in the parking lot for a while after the closing.

On his way home, T.M. was stopped at the traffic light.  When the light turned green, T.M. had 'punched it' in order to get around the truck next to him.  Following the quick acceleration, T.M. saw headlights 'that came out of nowhere' right behind him, followed by flashing blue lights.  T.M. knew, at this point, that he was being pulled over for speeding.  When the officer asked T.M. if he had been drinking, T.M. replied he had had about 7 beers over about a 6-hour period.

The officer then had T.M. blow into a hand-held Alco-sensor immediately.  He then asked T.M. to perform a series of five field sobriety tests, and then blow into the breathalyzer once more.  T.M. registered 'positive' on the Alco-sensor both times.  The officer then placed T.M. under arrest for DUI.  He blew a 0.108% and a 0.105% on his two breath tests on the Intoxilyzer 5000 at the police station.

The investigation of the case revealed that although one officer made the traffic stop, a different officer had administered the standardized field sobriety tests.  This officer had also attempted to read T.M. his implied consent warnings, but made errors in the reading of the advisements.

When the case was scheduled for trial, the initial arresting officer did not appear.  Because T.M. had a prior history of previous DUI, risking trial was not a desirable option.  After going over some evidentiary issues with the prosecutor, a negotiated plea was entered whereby the DUI was dropped.  T.M. was required to complete a 28-day in-house alcohol treatment program to reduce the DUI charge to reckless driving.  He kept his license, but had to perform community service and pay over $900.00 in fines.