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Case Conclusion Date: 01.12.2009
Practice Area: DUI and DWI
Outcome: Case Called for Trial, Pre-Trial Motions Conducted
Description: After dinner with another couple, a local physican and his spouse were driving back to their Buckhead area condominium when he was stopped for driving 59 in a 35 mph zone. The State trooper smelled alcohol and and asked him to "exit the vehicle". When field tests were started, the physician started talking about the fact that their condo was 300 yards away, and asked the trooper to let them go home. The trooper declined to allow that, and continued trying to conduct his roadside sobriety evaluations. A video showed the manner of administering the horizontal gaze nystagmus evaluation (eye test) to the suspect, and the evaluation was done incorrectly by the trooper. In addition, the wife tried to step out to see what was happening, because she could hear conversation between the two men and that the trooper was raising his voice to Mr. Head's Client. This "threat" of the wife becoming involved in this investigation led to the trooper calling for back-up, and another trooper soon arrived for purposes of controlling the wife's actions, if she became agitated or tried to interfere. This trooper left his blue lights on during the entire HGN (eye exam), likely affecting this evaluation's reliability. The video also captured the trooper threatening to arrest the physician who was asking questions about the tests being offered, and about his right to call an attorney. Soon, the cuffs were placed on the doctor's wrists and the arrest was made. The suppression motion just prior to trial focused on one issue: the sufficiency of evidence obtained by the trooper prior to making a custodial arrest for DUI. As part of the hearing, the prosecutor conceded that the field sobriety tests would have to be excluded due to the fact that the trooper's wording that threatened arrest constituted "custody" under the holding of a Georgia case, State v. O'Donnell from 1997. When such custody has already been "announced" or started, Georgia case law requires that no voluntary field tests can be administered UNLESS Miranda advisements are given (right to legal counsel, right to remain silent, etc.) Mr. Head only asked 6 questions of the trooper after that point in time before asking the judge to dismiss the entire DUI charge due to lack of sufficient evidence to support the arrest decision. Mr. Head cited several similar appellate cases from the Georgia Court of Appeals, including Handley v. State from 2008, Sanders v. State from 2005 and State v. Gray from 2004. The judge agreed, and granted the suppression motion. That ended the DUI prosecution the same as if the jury had acquitted Client. Then, Mr. Head agreed to enter a guilty plea to the speeding offense, except for a speed lower that the "cutoff" for the case being reported to the Department of Driver Services (no points and no record being posted). The Client paid $100 fine plus $35 in surcharges, which ended the case.