Porsche Driver Clocked at 117 m.p.h. & With 0.192/0.194 Breath Test Readings Acquitted of DUI at Trial

William C. Head

Case Conclusion Date:December 8, 2006

Practice Area:DUI / DWI

Outcome:Not Guilty to DUI Charge; Nolo to Speeding

Description:A late night business meeting for client led to an Atlanta area Posche owner being pulled over for speeding on I-75 northbound. The video of the Client's encounter with the police officer showed atrocious manifestations, and the Client was clearly impaired. The officer even laughed at the condition of the driver as he attempted to respond to questions and to perform field sobriety evaluations. Predictably, the arrest for DUI, reckless driving and speeding followed. The Client met with Mr. Head who immediately identified several excellent issues in the case. One significant issue was that the uniform traffic citation only identified one type of DUI, the per se-alcohol offense for being over the legal limit of 0.08 grams percent. This could have been amended prior to trial, in order to add "impaired driving", but it never was done by the prosecutor. Mr. Head asked for a bench trial because the judge handling the case was extremely fair about ruling on motions and trial issues where the State's evidence fell short. On the morning of trial, Mr. Head offered to have his Client plead nolo contendere to either the reckless driving or the speeding, but not both. Mr. Head also offered the maximum fine of $1000 and also offered 40 hours of community service, The prosecutor accepted the speeding charge, leaving only the single "count" of DUI over the legal limit. The arresting officer testified, and stated that the Client AGREED to take a breath test at the station after he had been placed under arrest and given his advisements of the consequences of either submitting to the official test or refusing the test that would be available at the police station. The prosecutor never introduced the video tape, and rested his case without showing the video. Mr. Head began the cross-examination of the officer, and focused immediately on the claim that the driver had said he would take the State-administered test at the station. Mr. Head then requested that the video be played for the judge. The Prosecutor objected, claiming it was "the State's tape" and that the defense had no right to it. In this jurisdiction, the prosecution only allowed defense counsel to view the tape, not get a copy of it. The Judge immediately detected a problem because this videotape was NOT anyone's "property", and it was now claimed to be exculpatory evidence of a possible complete defense to the two breath test readings of 0.192/0.194. After a protracted time, the Prosecutor reluctantly turned over the tape pursuant to the Judge's demand for it to be played in court. As Mr. Head told the judge, the tape showed the Porsche driver TWICE say he was not going to submit to any test. Because a Georgia Court of Appeals decision by the name of Howell v. State from 2004 was directly on point, the Judge was compelled to exclude the breath test results. He then found the Porsche driver NOT GUILTY on the sole DUI charge, despite Mr. Head's Client being absolutely hammered on the videotape. The Client paid the fine and provided proof of the 40 hours of community service, which terminated the case with 0 points on his driving history and his full driving privileges.

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