Client Gets Pre-Trial Appellate Win, Tossing Entire DUI Case 257 Ga.App. 435 (2002)
Dec 01, 2002
OUTCOME: Traffic Stop Illegal; Both DUI & Other Charge Out
Mr. Head's client sought to have the trial judge declare her DUI arrest to be illegal. The trial judge denied the motions. An appeal was sought by Mr. Head on behalf of his client prior to trial being ...conducted, and the Georgia Court of Appeals granted the appeal. On the merits, the trial judge's ruling was overturned. The breath test results (0.10) and all evidence of her alleged impairment should have been excluded, the appellate court held. Ms. M's entire DUI case was dismissed as a result of this appeal, without risking trial. This victory saved her job.
DUI and DWI
Judge's Suppression of High Breath Test Appealed by Prosecutor, Mr. Head Wins Appeal. 255 Ga.App. 685, 566 S.E.2d 409 (2002)
Oct 07, 2002
OUTCOME: Client's Independent Test Denied; High Test Out
At a pre-trial hearing to exclude a high breath test reading, Mr. Head argued motions focusing on the legal necessity of the trial court excluding all breath readings. The trial judge agreed, and orde...red the test results to be excluded. The Prosecutor, seeing that Mr. Head's client was a repeat offender, appealed the ruling, since the DUI case was largely based on the test results. Mr. Head welcomed the appeal, because the judge was well-founded in his exclusion of the breath results.
The Court of Appeals upheld the trial judge. In part, the appellate court ruled as follows:
Pursuant to OCGA § 40-6-392, police may have a chemical analysis done of a DUI suspect's blood, urine, breath, or other bodily substance. This statute also provides the suspect with the right to have a “qualified person of his own choosing administer a chemical test or tests in addition to any administered at the direction of a law enforcement officer.†OCGA § 40-6-392(a)(3). “Law enforcement officers have a ... duty not to refuse or fail to allow an accused to exercise the right to have an independent test.†(Footnote omitted.) Avant v. State, 251 Ga.App. 165, 166, 554 S.E.2d 194 (2001). Indeed, denying the defendant the right to this independent test, without justification, renders the State's test results inadmissible. Chamberlain v. State, 246 Ga.App. 423, 425, 541 S.E.2d 64 (2000).
When the case was remanded, the breath test results were excluded, and Mr. Head's client escaped a second DUI within 5 years.
DUI and DWI
Client Honored on Top Sales Award and Gets Arrested for DUI with 0.202/0.212 Breath Test Readings; Then Mr. Head wins Jury Trial
Sep 24, 2002
OUTCOME: Not Guilty on Both DUI Charges after 3-Day Trial
A regional manager for an Atlanta-based High Tech Company accepted the National Top Sales Award for his sales teams at Villa Christina Restaurant. At about 11:30 PM, he started home to Dunwoody, and w...as pulled over by a Dekalb County officer for allegedly changing lanes into her lane on northbound Ashford-Dunwoody Road as DB was moving over to gain access to I-285 eastbound.
Despite being on I-285, the officer asked the 61-year old driver to attempt field sobriety tests as traffic zoomed by a few feet away, His roadside scores were extremely good, despite the hazardous conditions and poor lighting. Nevertheless, he was arrested and asked to submit to breath testing at the station that he was being taken to (Dekalb County Detention Center). As with all other requested police testing, he agreed to submit to these evaluations of his breath. The two breath results were a surprisingly high 0.202/0.212.
DB's son was an attorney in Tennessee, and the son had tracked down Mr. Head through some Tennessee DUI specialists. DB wanted to fight the case because he knew something had to be wrong with the Intoxilyzer 5000 results. Mr. Head was hired to either get the case reduced, or to fight the case at trial. DB's job was at stake, despite being the top sales manager in America.
The Prosecutor scoffed at any reduction of the DUI, in light of such high breath test readings, and Mr. Head requested a jury trial, realizing that DB would face both an "impaired driving" charge and a charge of DUI-alcohol per se for being over the legal limit.
The jury trial lasted 3 full days. The prosecutor questioned Mary C. McMurray, the expert witness called upon by the defense to challenge the State's breath test machine, for over 9 hours over a 2-day marathon session. Despite this effort, the jurors were convinced that the high breath numbers were the result of the Intoxilyzer 5000 machine's inability to distinguish between true breath alcohol content from deep lung air versus "other causes" (DB had several relevant health issues including denture plates manufactured out of a pliable, absorbent material, Type II diabetes and being on a high protein diet at the time of his arrest).
Futhermore, a co-worked of DB's at the celebration dinner testified that the alcohol amount for all attendees was controlled and paid for by the company that night, and that no one had over two glasses of wine. He also testified that at about 10:30 pm, DB gave a flawless "acceptance" speech (on behalf of his "team").
The Prosecutor's desperate effort to besmirch Ms. McMurray backfired. The jurors, who were lead by a female Biochemist with a Ph.D. degree were totally "on track" with Ms. McMurray's truthful portrayal of Georgia's dismal oversight of quality control at the GBI, and found DB "not guilty" of both DUI charges.
DUI and DWI
Almost Incoherent Driver Acquitted of DUI-Alcohol after Jury Trial
May 15, 2002
OUTCOME: Not Guilty of DUI-Alcohol
D.W. was a former New York resident with a long history of psychiatric problems. He and a neighbor were at the neighbor's condominium working on a computer software problem all day before stopping for ...pizza and a few beers late in the evening.
D.W. was taking prescribed medication for his "manic-depressive" (bipolar) condition. After he and the friend finished work, he was supposed to go upstairs to his own condominium. Although he only had a beer and a half, he had taken his medications that were prescribed for bipolar disorder. These medications were Halcion, Lithium, and Paxil.
Instead of going to bed, he decided to go to his girlfriend's residence. He took her Toyota Camry, which was parked at his condo location. When he got to her gate, he found that she was not home from work yet (she had a promotional event for her employer). He tried to "key in" her access code, but the gate would not open. In a drug-induced haze and totally frustrated, he backed up the Camry and rammed the metal gate that was anchored into two large brick pillars. The front end of the Camry became wedged in the massive steel gate. He tried to dislodge it by putting the car in reverse first, then drive, then back into reverse and back into drive--dragging the heavy gate back and forth. Needless to say, the entire condo complex was soon awake (prior to D.W. freeing the car). Later, the damage to the gate and support pillars was determined to be over $10,000.
He backed out and sped away from the scene, leaving most of Toyota's bumper and front end parts behind. Both headlights were broken and not working.
As he came to a red light at the 400 loop, he ignored the red signal and turned left toward Peachtree Street. A police car that had been dispatched to the "gate dragging" location nearly broadsided his damaged Toyota vehicle as D.W. ran through the red light.
The police car got behind the Toyota just as D.W. swerved wide and ran up on to the curb of the 400 loop near the Buckhead Ritz-Carlton. D.W. pulled into the parking lot of the Ritz-Carlton in response to the officer's blue lights.
D.W. stepped out of the Toyota, holding on to the top of the driver's door and the roof of the vehicle. When he did, his pants fell to the ground. No field tests were possible due to his unstable condition. D.W. refused to take ANY breath tests for the two officers at the scene.
At trial, the arresting officer testified that there was a 1/2 beer bottle open and sitting in the center console of D.W.'s vehicle. He testified that he could smell the odor of alcohol on D.W.'s breath. He also testified, on cross-examination by Mr. Head, that he had NEVER seen anyone so "wasted" in his life. Further cross-examination by Mr. Head revealed that the officer had no training in "drug recognition" symptoms. The officer also said that he never asked D.W. if he had consumed any prescribed medications.
Defense witnesses called by Mr. Head included the condo neighbor, D.W.'s girlfriend, and a medical doctor who testified at the jury trial. Our sole defense to the "DUI-alcohol" charge was that he was not under the influence of ALCOHOL, because he had only consumed 1 1/2 beers at the most. We argued that he was impaired by PRESCRIPTION DRUGS and that he was not accused of "DUI-DRUGS." Because teh Prosecution had "mis-charged" the TYPE of DUI, we argued that the jury MUST acquit him of the DUI.
The jury acquitted D.W. of the DUI offense after a 3 hour deliberation. Judge Tharp was (at that time) acting as a Pro Hac Vice (temporary) judge for the City Court of Atlanta.
DUI and DWI
Client's Pickup Struck Telephone Pole Head-on; High Breath Test Readings, Yet Totally Acquitted
On May 2, 2000, J.L. was injured (knocked unconscious, limping and bleeding from the facial area) after his truck crashed into a telephone pole along the shoulder of Decatur Street near downtown Atlant...a. The fire department and an ambulance arrived at the scene of the accident first, followed by a police officer shortly thereafter. When the police officer arrived at the scene, he observed J.L. standing outside of the truck. The officer also saw the fire department removing a semiconscious woman from the passenger seat of the truck. J.L. was bleeding from his face and mouth and appeared to have a sprained ankle. The officer also detected a strong odor of alcohol on J.L.'s breath. The ambulance driver told the officer that Loy had been driving the truck. In addition, a bystander specifically told the officer that he saw J.L. driving the truck just prior to the accident. However, when the officer asked J.L. how the accident occurred, J.L. said that he did not remember what happened. J.L. failed two field sobriety tests, and the officer arrested J.L. for driving under the influence. J.L. took the State breath test, which was nearly 0.20.
Mr. Head filed a motion to suppress and a motion to dismiss charges. Mr Head argued that any evidence gathered by the police in connection with J.L.'s arrest, claiming that the police lacked probable cause to arrest him for the crime for which he was accused. At the motion hearings, the arresting officer was the only witness to testify for the State at the suppression hearing about the events surrounding the accident. The trial judge granted Mr. Head's motion, effective dismissing the entire case. The Prosecutor then filed an immediate appeal of this ruling, since the case against J.L. was terminated if the Prosecution did not appeal. The trial judge upheld Mr. Head's "hearsay" challenges and ruled that “the ambulance and fire department were not personal witnesses of the accident, nor was the arresting officer. Accordingly ... the State did not prove by a preponderance of the evidence that [J.L.] was driving the vehicle.â€
The Court of Appeals, on September 20, 2001, reversed the ruling of the trial judge. That ruling is at 251 Ga.App. 721, 554 S.E.2d 800 (2001). This meant that the case was sent back to the City Court of Atlanta for trial.
When the case came up for trial, Mr. Head announced ready. Mr. Head also "waived" jury trial for J.L., and asked the same judge that had ruled favorably in May of 2000 to decide the "GUILT" phase of the case.
Althought the Prosecutor brought in several more witnesses this time, Mr. Head either totally blocked their attempt to introduce "hearsay" evidence at trial, or cross-examinted them until they admitted that they had no direct proof of seeing Mr. J.L. behind the wheel. One key fact that Mr. Head was able to extract from the fire department witnesses was that the DRIVER'S door of the poickup truck was wedged shut from the collision with the pole, and could not be opened. Mr. Head then asked, "If you say J.L., who was injured and remembered nothing of the crash, must have been driving, how did he get out of the pickup truck with an unconscious passenger between him and the passenger door?"
The trial judge ruled that the State failed to carry its burden of proof, and the Defendant walked away with no convictions on any charge.
DUI and DWI
State v. DD, Case that went up on Appeal filed by the State and then Returned for Trial, where Client was Ultimately Acquitted
Jan 08, 2002
OUTCOME: Teacher's Aide Could Not Have DUI on Record
DD, a teacher's aide whose goal was to become a full time teacher, was arrested in 1998 for DUI in Fulton County, GA. Despite the arrest date, the Fulton County State Court took over an additional yea...r to accuse her by way of formal accusation, which was finally filed July 28, 1999. On behalf of Ms. D, Mr. Head filed a statutory speedy trial demand based on the fact that Ms. D's employment opportunities were being curtailed by this pending case, which she had to report to all prospective employers.
At the time of her arrest, DD mistakenly refused to submit to the official breath test after she was placed under arrest. The official test would almost certainly have resulting in the DUI case being dropped, since she had very little to drink on the night of her arrest. She attempted to perform the voluntary field sobriety tests, and the officer claimed that she did not do well on these highly subjective evaluations.
On significant motion was for "discharge and acquittal" based on the State not afording Ms. D a speedy trial, as demanded by Mr. Head in his written pre-trial motions. Although the trial judge sided with Mr. Head and his Client, the State appealed the ruling, saying that Mr. Head's list of absences was OVER the 30 day limit. To get to such a convoluted holding, the Court of Appeals had to decide that Thanksgiving Day, Christmas Eve, Christmas Day & New Year's Eve were the extra 4 days of improper leave of absence, to manage to overturn Judge Gino Brogdon's ruling that the Prosecutor had not taken appropriate steps to bring the case to trial. The appellate court also ruled that if Mr. Head was out of court for some pre-surgical tests, that he could have had another attorney handle the trial in his absence, which would have violated Mr. Head's "personal services" contract with DD, which requires that Mr. Head handle this postion of all of his cases. The appellate case is reported at 251 Ga.App. 361, 553 S.E.2d 831 (2001),
Undaunted by the questionable appellate reversal of Judge Brogdon's favorable ruling, Mr. Head called for a trial by jury, and Ms. D was acquitted of the DUI by a 6-person jury in the State Court of Fulton County. This protected Ms. D's ability to later seek employment as a teacher, The Prosecutor spurned all offers for a reduced plea despite Ms. D's clean driving record and an extreme need to keeping her driving history free of a DUI conviction.
DUI and DWI
Roadblock Stop Challenged and Favorably Ruled Upon at Trial level Before being Reversed on Appeal; Yet, Mr. Head Still Won Case
Jun 11, 2001
OUTCOME: Motions, Appeal and Additional Motions End DUI
As with all of Mr. Head's case, an array of motions were filed on behalf of JAD, a recent college graduate who was working the following summer of 1999 as a lifeguard. A full blown pre-trial challenge... to JAD's roadblock stop in Dekalb County resulted in a favorable ruling by Judge Denise Majette, who was then serving as a Dekalb County State Court Judge. The judge made an oral ruling on March 27, 2000, but no final written order was entered until after the statutory speedy trial term had run. This led to an appeal of BOTH the motion for discharge and acquittal based on failure to grant a speedy trial as well as an appeal based on the illegal roadblock, which did not comport with Dekalb County's own rules for proper establishment and operation of the roadblock. The State appealled, because either of the rulings would have meant that the case was over, based on either double jeopardy for the lack of a speedy trial or the illegal stop (4th Amendment violation). The appeal is reported at 248 Ga.App. 582, 546 S.E.2d 69 (2001).
The Court of Appeals reversed Judge Majette. The case was then "remitted" (returned for trial) to Dekalb State Court. Mr. Head announced ready at trial, and JAD was acquitted of all charges.
DUI and DWI
Acquittal for Underage Vandy Student Home for Spring Break after She Wrecks Car and has 0.16 Breath Test
Jun 05, 2001
OUTCOME: Not Guilty at Bench Trial on 0.16 BAC Reading
L.C., who was 20 years old at the time, was home for Spring Break from Vanderbilt University. She was staying with her parents in the Gwinnett County home. That night, she went out with firends and h...ad a single vehicle accident where she drove off the highway into a wooded area, striking several small trees. Her BMW was stuck in the wet soil next to the highway on a downhill slant, and could not be extricated.
A high school friend passed by shortly after the incident and asks if he can help. She asked for his help but he could not get the car backed out either. So, he drove her to her home, a distance of less than 3 miles.
No sooner than he delivered her to her parents' house the phone rang. It was the Lilburn Police Department who had found the car abandoned at the wreck location. The police had traced the car to her father, in whose name the tag was registered. Her father was cooperative with the officer, and followed the officer's instructions to bring L.C. back to the wreck location. The two of them traveled back to the location of her stranded BMW.
Once at the scene, the officer wasted little time arresting L.C. for "failure to maintain lane" and DUI.
Mr. Head was hired to defend the case.
Mr. Head made the decision to leave the case in Lilburn Municipal Court, because the investigation had been handled in a way that made Mr. Head believe that the officer could not prove the case against her. No questions had been asked by the officer of WHEN the driving ended (with the wreck, WHETHER L.C. drank alcohol before or after the driving ended, WHAT CAUSED the wreck and other questions that could have supported both the prosecution for "per se" DUI (being over the legal limit) and the "failure to maintain lane".
The case was called for trial, and the officer began testifying. That meant that "jeopardy" attached, and she could not be prosecuted here or elsewhere on these same charges.
To almost all the Prosecutor's questions, Mr. Head objected, either on relevance (issues of impairment are of no consequence in a per se alcohol trial) or on issues of lack of a factual basis for drawing certain conclusions about when L.C. drove.
Within 12 minutes of the testimony starting, the trial was over. Not guilty of all charges.
DUI and DWI
Underage College Student Stopped for Going 86 in a 65 Has Marijuana in Pocket and Admits Smoking It and Drinking Beer
Dec 14, 2000
OUTCOME: Not Guilty of All Four DUI Charges with 0.059%
A 20-Year Old College Student who was speeding on his route up I-85 north toward Gainesville, GA, was stopped by a seasoned Gwinnett County police corporal with 22 years of police work to his credit. ...The entire confrontation and arrest were captured on videotape, until the point that the young man was put in the back seat of the police cruiser, at which time the corporal turned off the audio component of his high-tech DUI camera system. Therefore, the all-important "implied consent" warnings were not captured on tape, despite the patrol car remaining there for nearly 10 additional minutes, waiting on a tow vehicle.
The tape also showed the officer "controlling" the young, frighted man at the roadway. The officer got the college student to admit drinking earlier, and to smoking marijuana earlier. The officer frisked the young man and found a clear plastic cigar "tube" that had some marijuana in it. He asked the young man what was in the tube, and he admitted "marijuana". The officer tossed the marijuana into the tall grass adjacent to the highway while chastizing the young man.
The officer then started field sobriety tests. The driver apparently did well enough that the officer suspended giving the remaining standardized field sobriety evaluations prior to the one leg stand. Yet, it was apparent to Mr. Head from the beginning of the tape, the driver was going to be arrested for DUI and speeding --- no matter what.
At the jail, Mr. Head's client submitted to a breath test which had a low reading of 0.059 grams %. For drivers under age 21, however, the law at this time had recently been changed to a 0.020 standard for the DUI-alcohol (per se) level.
The Gwinnett State Court Solicitor (our misdemeanor prosecutor in Georgia) drew up a written accusation for DUI-alcohol (less safe), DUI-alcohol (per se), DUI-marijuana and DUI-marijuana and alcohol plus the speeding charge.
At an administrative hearing, Mr. Head goaded the officer into admitting that the camera system did not malfunction, but that he turned off the camera before the implied consent advisements could be heard (from the internal microphone of the police cruiser). The ALS hearing went against the college student, but that transcript from the early hearing proved valuable later.
Mr. Head asked for a bench trial, because he was convinced that almost any group of typical jurors would find this driver guilty of some type of DUI charge. After the State had put forth their case, Mr. Head targeted the cessation of field evaluations by the corporal. Mr. Head got the officer to concede that he did not have proof of IMPAIRMENT by either alcohol, by marijuana or by a combination of marijuana and alcohol. Because Mr. Head had stipulated to the speeding charge and a 0 point violation at the outset of the trial, that left ONLY the DUI-alcohol per se count to be decided.
Mr. Head utilized the sworn transcript from the earlier ALS hearing to get the officer to admit that he INTENTIONALLY turned off the audio portion of his taping system after he placed the man in custody and seated him in the rear seat of the police cruiser. The corporal tried to justify the conduct by making an extremely lame excuse that "sometimes at arrest scenes, officers will say something stupid on tape". However, no other officers were ever on tape at this arrest scene.
Then, the Client testified. He truthfully admitted the marijuana use, the alcohol use and the speeding. He also said that the corporal NEVER read the implied consent rights to him, because he was anxiously awaiting his "legal rights" being given so he could find out how to call his father. He testified that the rights were never given.
In closing argument. Mr. Head reminded the trial judge that the State had the burden of proof and that this seasoned officer KNEW BETTER than to intentionally NOT CAPTURE the most important part of a DUI arrest.
Judge Hamil RELUCTANTLY found Mr. Head's client NOT GUILTY of the DUI.
DUI and DWI
Client Gets DUI Dropped Despite Two Breath Test Readings over 0.18 and an Independent Blood Test Result of 0.18
Nov 14, 2000
OUTCOME: DUI Dropped Despite Two Breath Tests Over 0.18
"Failure to dim headlights" and a "rolling through a stop sign" charges got MJ's vehicle pulled over. After attempting field sobriety evaluations, MJ was ultimately arrested for DUI by a Forsyth Count...y DUI task force officer. The officer read MJ the implied consent warnings and requested breath tests. MJ agreed to the tests, but later stated he would also want his own independent blood test to be made.
After submitting to the officer's test at Forsyth County Sheriff's Office, MJ asked to be taken for his own independent blood test to Northside Hospital located in Fulton County some 25 to 30 minutes away from Forsyth County. The officer immediately told MJ that he "was not driving into Atlanta" and that MJ needed to choose another facility for the blood test. MJ did not really want to go elsewhere, because he was familiar with Northside since he was born there, his mother worked there and he knew they had his medical records there. Ultimately, MJ got his blood tested at North Fulton Hospital in north Fulton County, and the results were 0.18.
Mr. Head took MJ's case and immediately filed a motion to exclude the State's breath test readings for the officer's failure to accommodate MJ's request to go to Northside Hospital, which was the medical facility "of his own choosing." At Forsyth County State Court, the trial judge denied Mr. Head's motion on behalf of MJ.
Mr. Head then requested an immediate appeal (which must be approved by the trial judge) because the exclusion of the high breath readings was the lynchpin of the case. The judge took the request under advisement, and allowed the interlocutory appeal to go forward.
The Court of Appeals granted the interlocutory appeal, which is rare. The appellate court looked at the transcript of the pre-trial motion hearing, and the testimony of both the arresting officer and MJ. The following quotes (except the name of Mr. Head's Client) were from the appeal:
"MJ files this interlocutory appeal from the trial court's denial of his motion to exclude the results of a state-administered chemical sobriety test." AND
"In this case, the officer did not make a reasonable effort to accommodate MJ's request to be taken to Northside Hospital for an independent test. As the officer admitted at the hearing, time was not an issue, since the requested hospital was no greater distance from the sheriff's office than some of the hospitals which the officer thought would have been reasonable choices, and because the officer was not in any particular hurry to finish processing the arrest. Likewise, the fact that the requested facility was outside Forsyth County did not make the request unreasonable, since the officer testified that other hospitals located outside the county, including the one to which the officer drove MJ, would have been reasonable choices. And it is undisputed that MJ was able to pay for the test." AND
"Because the arresting officer was not justified in refusing to accommodate Joel's request for an independent blood test, the trial court erred in denying the motion. Therefore, we reverse."
Once the case was remanded to Forsyth County, the Solicitor dropped the DUI charge and allowed MJ to enter his plea to a lesser charge. This result was exactly what MJ sought when he came to Mr. Head's office.
The interlocutory appeal can be found at 245 Ga.App. 750, 538 S.E.2d 847 (2000), and is an important appellate decision in the field of a person's right to an independent test in Georgia.
