Case Conclusion Date: May 12, 2011
Practice Area: DUI / DWI
Outcome: All charges dismissed for lack of probable cause
Description: Jason is a chemical engineer. Heâ€™s got a clean record. He depends on his license to work. Jason ran a red light, went left and got on to the ramp for I-95 Northbound. He was immediately pulled over just off the ramp by Cop 1. Cop 1 wrote in his report that Jason â€œhad slow motor functions and an odor of an intoxicant was being emitted from the vehicle.â€ The cop asked Jason â€œHow much have you had to drink tonight?â€ Jason said â€œI havenâ€™t been drinking.â€ He asked Jason to get out of his truck and walk to the rear. He gets out. The cop says he staggered walking to the rear of his truck. Cop 1 asks Jason if heâ€™ll take some Field Sobriety Tests. Jason said Yes. Cop 1 then calls Cop 2 to come out here and give Jason the field sobriety tests. Cop 2 comes and does. Jason feels like he passed. But then, he was hand-cuffed, searched, and shoved into the back of Cop 1's police car. He was arrested for DUI less safe based on what the cop saw. Cop 1 asked him to take the breath test, and he agreed as long as a professional gave it. He was taken to the police station and sat down in front of the Intoxilyzer 5000, which is Georgiaâ€™s Breath alcohol test. They asked him if he would take it. He said he wanted to see the officerâ€™s certification to give the test. They did not show him any certification. Next, Jason wanted a doctor to give him a blood test. Then he asked to speak with a lawyer. The cops told him neither request was going to happen. Jason didnâ€™t take the breath test and was charged with DUI less safe because he refused to take the breath test. In Georgia, youâ€™ve got a right to requests an independent test. The copâ€™s failure to let you take one must not be justified. You must request or arrange for your own test after you submit to the state test. You must pay for it, unless you are poor. The police report says Jason asked for an independent test. So, the burden shifts to the State to show that he was not denied an independent test. Iâ€™m confident that we would have won on this if it had gotten there. I get ready for the Preliminary hearing. I prepared cross-examination questions for all the cops involved. There are several defenses here. The Field Sobriety was done all wrong. The independent test was violated. Thereâ€™s more than that even, but the thing went down a different road. At the preliminary hearing, I see two of the officers and talk to them about the case. I asked them where Cop 1 was and they said they didnâ€™t think he would be coming back because of the way he left. Heâ€™s no longer with the police department. So, theyâ€™ve got the field sobriety officer and theyâ€™ve got the breath test officer. But, they have no stopping officer. Cop 2 testifies that Jason was drunk and failed the field sobriety tests. Cop 3 testifies that he prepared the breath test and Jason refused to take it. The judge looked over to me and said: "Any questions, Mr. Cerbone?" I had prepared cross-examination questions for both of them. It would have been stimulating to do it. Rather, I looked up at the judge and said â€œI request you dismiss the DUI because there is no testimony showing probable cause to stop my client. Therefore, it was an illegal arrest. Dismissed.