Man with 0.266 Blood Test Drives Car Through His Garage Door, out Back Wall of His Home and Off Elevated Deck, Hitting Tree

William C. Head

Case Conclusion Date:January 15, 2008

Practice Area:DUI / DWI

Outcome:Not Guilty on All Charges

Description:Client drove home with his wife after having dinner and alcoholic beverages to drink. As he entered his driveway, the car (a 1995 BMW 325 4-door) suddenly lurched forward and crashed through the garage door at high speed, proceeded at full throttle through the back wall of the home and onto a wooden deck, through the wooden railing and sailed off the deck into the back yard where the car launched itself a distance of over 27 feet and dropped 12 feet before landing on the ground and then striking a tree, where the vehicle stopped. Both the wife and Client were injured, but client was more seriously injured (broken back). Neither one was still in the vehicle when the police and EMTs arrived. The wife had managed to get into a lawn chair at the front of the house, and the driver (Client) was outside the wrecked vehicle on the ground, lying on his back. Police reported "an overpowering odor of alcohol" as they came into the back yard area. Client asked the arresting officer to help him stand up, and extended a hand for him to assist him to his feet. The police officer declined to allow him to get one his feet (due to his likely injuries from such a disasterous crash) and waited on EMT personnel to move him. The officer questioned him. The arresting officer, at trial, admitted that upon seeing the auto damage and where the car ended up in the back yard, that he called for ambulance BEFORE ever even locating my Client. Client admitted to the arresting officer that he had two glasses of wine, but officer never established a timetable of WHEN the alcohol was consumed. Client told officer "the accelerator stuck" multiple times, but otherwise was disoriented and talking about fear of coyotes and skunks that may attack him. The officer testified that he came to the conclusion that Client was drunk but NOT seriously injured before he read the implied consent advisements to him, but wanted him checked out for possible head and neck trauma due to the circumstances of the crash. The officer READ the "implied consent" to my prone client in the ambulance but never said "I am arresting you for DUI" nor stated in any way that he would be charged with DUI. Implied consent was read again at the hospital, but still NO ARREST. Later, officer "drops off" a copy of the DUI ticket to Client's wife, who was also at hospital being treated, and says he started to explain the charge to Client who told him he was familiar with the warning. Then, I had to get around the hurdle of our "serious injury" exception (see Hough), and got the officer to admit that he did not assess it that way. The judge slowly and reluctantly agreed to eliminate the blood test results of 0.266 grams percent based on appellate case law in Georgia. See Hough v. State, 620 S.E.2d 380 (Ga. Supreme Ct. 2005) Once the Prosecutor "rested" its case with no blood test in evidence and no field evaluations in evidence, we put two witnesses on the stand. Our two witnesses, Dr. Joe Citron, MD (for purposes of explaining the manifestations of head trauma mimicking DUI, plus citing a well-known scientific article by Burns, Moscowitz and Ferguson that studied the ability of experienced police officers to accurately predict high blood alcohol levels from smelling the "strong odor" of alcohol on a person's breath. The study concluded that officers were not able to reliably correlate strong odors with high BAC levels. Next, an experienced accident reconstruction expert Robert (Bob) Awtrey of www.southeasternsafetyassociates.com (who covered the sudden acceleration issues with this model of BMW [all 418,000 sold in the United States had a defective throttle control sleeve], as well as explaining the LIKELIHOOD that the vehicle defect launched the vehicle through the house and out into the yard.) Judge Randolph Rich, hearing the case without a jury, was compelled to find Client "not guilty" of all charges.

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