Case Conclusion Date:December 16, 2008
Practice Area:Administrative Law
Outcome:DUI Arrestee Successfully Attacks ALS License Loss
Description:A Marietta officer captured on a police car video all of Mr. Head's Client's alleged bad driving that occurred September 10, 2008 shortly after midnight. This tape was introduced by Mr. Head as part of the administrative license suspension hearing. The arresting officer did not offer it as part of his case, despite the fact that he had the burden of proof at this administrative license suspension hearing. Mr. Head cross-examined the officer about the legitimacy of the traffic stop. The officer claimed that the video evidence "did not capture" all that he saw occur on the roadway. Mr. Head argued to the ALS judge that "videotapes do not lie", and that the tape was crystal clear. When the officer approached the vehicle, Client was talking on her hands-free cell phone. The officer told her to hang up. He then stated that he had stopped her for traveling "too slow" (between 28 and 32 miles per hour.) Next, he got the Client to admit to drinking wine at an earlier time that same evening. During the hearing, Mr. Head obtained the officerâ€™s admission that there was no minimum speed limit on this roadway. Furthermore, the officer never testified (during his presentation of the facts supporting his traffic stop decision) to what the posted speed limit on this roadway was, so no proof of a violation of any law relating to speed was shown. Plus, Georgia has favorable case law that says driving at a speed below the speed limit is no crime. On the video, the officer then ordered Client out of the vehicle. She was then asked to perform standardized field sobriety tests, which she hesitated to do because she has epilepsy. She advised the officer of her "neurological deficits", yet he persisted in asking her to attempt the evaluations. Her protests of inability to perform such testing were ignored. After the horizontal nystagmus evaluation [HGN] (an eye test), the officer tried to get her to attempt some balancing (agility) exercises, which Client declined, telling him her epilepsy prevented it. He immediately arrested her, despite her verbal protestations. He pushed her inside the back seat, causing bruising of her wrists. This was captured on the videotape, which had a second, back seat camera operating. To challenge the legality of this arrest based on field testing, Mr. Head submitted the video and also called (as Client's witness) a true expert on standardized field tests, Mr. Tony Corroto [www.DUIexpertwitness.com]. Mr. Corroto, a retired police officer and field sobriety trainer of the TRAINERS, refuted the propriety of offering field tests to a person who is on medication for epilepsy. This testimony by Mr. Corroto negated the validity of the "6 out of 6 clues" the officer claimed to have gathered for HGN. Mr. Corroto also disputed the arresting officer's claim that she was a "proper candidate" for the HGN test, citing every NHTSA field test manual since 1992. Mr. Corroto also noted that the officer failed to note that Client's right pupil was between 1.5 and 2 mm larger than the left, indicating traumatic brain injury. Mr. Head displayed this condition to the judge, who stated "I can see it." By order dated the next day, December 17th, 2008, Client's full driving privileges were restored. The judge ruled that no valid basis for the DUI stop and arrest existed.