Male Client with GERD (Gastric Reflux) wins 0.106 Bench Trial at Carrollton Municipal Court by Using Expert Testimony
Oct 23, 1995
OUTCOME: Not Guilty of DUI, Using Doctor and Breath Expert
Mr. Head's client had a long history of gastric reflux disease, also known by the abbreviation GERD. On this particular night, he was having a business dinner, and consumed a greasy, spicy dish and 2 ...beers. Eventually, he told his business companion he needed to go home to get some prescribed medication for his condition, because the meal was not agreeing with him. Before he got home, however, he had to pull over to the shoulder (in a rush) and was planning to relieve himself of the gurgling contents of his stomach. Before he could get completely stopped, he regugitated inside the vehicle and on the driver's door as he tried to avoid soiling his vehicle.
A Carrollton officer saw the vehicle stopped in the roadway and came over to check on what was going on. Smelling alcohol, he assumed that Mr. Head's Client was merely intoxicated and had become drunk from overconsumption of alcohol. He soon had the man under arrest for DUI. A breath test at the station revealed a 0.106 result.
Mr. Head requested a bench (non-jury) trial and called the Client's Carroll County physician as well as an expert on Georgia's breath machine, Mary C. McMurray from Blue Mounds, WI. The 90 minute trial resulted in a total acquittal for Mr. Head's Client, based on the fact that the 0.106 breath test number could have been mouth alcohol (the officer never allowed the Client to rinse his mouth before taking the State's breath test).
DUI and DWI
Speeding and Weaving Lead to Pullover of Repeat Offender with 0.22 Breath Alcohol Test
May 02, 1995
OUTCOME: DUI Charges were Dropped During Jury Selection
Defendant was charged by a Doraville officer with speeding, weaving and DUI. This offense was J.M.'s fourth lifetime, and a 3rd DUI violation in the past five years. When no reduced plea could be obtai...ned in Municipal Court of Doraville, the case was bound over to Dekalb State Court for a trial by jury. Motions were deferred by the trial judge and later heard while the jurors took a lunch after the jury selection process but before the jurorus were sworn.
Defendant was reported by the arresting officer to have failed all field tests. He took an Intoximeter 3000 test and rendered a 0.22 BAC. This result was excluded under Causey v. State, however.
The traffic stop and subsequent field evaluations were video taped. The Defendant performed fairly well, but the video revealed a key fact. No proper implied consent rights nor any Miranda rights were ever given to Defendant. This became important at pre-trial motions.
The video also revealed another key fact. After the arresting officer administered the HGN test, he asked the Defendant to perform the walk-and-turn test. As Defendant completed the first 9 steps, the officer was seen on video radioing his department the following: "10-51 my location". The "10" call was a request for wrecker, which arrived at about the same time Defendant was being handcuffed.
Utilizing cross-examination of the officer prior to the video tape being played at the motion hearings, the defense had established (1 ) that the officer had not been NHTSA trained (or trained on field tests any other way except observation) on the proper way to administer the HGN [horizontalgaze nystagmus evaluation]. Since the arrest, he had obtained the NHTSA training, and testified that he "now did it properly". This quasi-scientific field evaluation was excluded from evidence. (2) The officer had admitted that he did not gather sufficient proof of impairment of J.M. to arrest him until after all field testing was done. The officer specifically stated that he "would not have" arrested J.M. until at least after the walk-and-turn, and probably not until after all roadside testing.
The trial court ruled that --- based on the sworn testimony elicited by Mr. Head --- the officer never developed sufficient probable cause to arrest for DUI due to exclusion of the HGN results and exclusion of all field test evidence gathered by the officer after the "10-51" call was made. The court relied upon State v. Whitfield 214 Ga. App. 574, 448 S.E.2d 492 (1994) to exclude any non-Mirandized field tests which occurred after detention was clearly shown by virtue of the radio call for a wrecker mid-way between the evaluations.
After the entire DUI charge was eliminated, Defendant pleaded guilty to speeding and paid a fine. The jury was never sworn or impaneled to decide the case.
DUI and DWI
Contractor with 0.20 Breath Test Found Not Guilty of DUI at Trial
Apr 20, 1995
OUTCOME: Not Guilty of DUI Despite 0.20 Breath Reading
Defendant, a building contractor, was charged with DUI and driving without a tag. Defendant submitted to three field sobriety tests, and the State trooper testified that the subject failed all three te...sts. The Defendant was given an Alco-sensor test (roadside alcohol screening device) that showed "positive" for alcohol. An Intoximeter 3000 test given by the same trooper, showed 0.20 grams percent - over twice the legal limit. The test results were allowed into evidence.
After the jury was impaneled and the issue was joined, Defendant moved to limit testimony to a "less safe" case, because the City proceeded to trial on the Uniform Traffic Citations, rather than a formal accusation. Because the DUI citation only mentioned 40-6-391(a)(1), the motion sought to eliminate any other type of DUI as a means by which the Defendant could be convicted. Relying on Kevinezz v. State, 265 Ga. 78, 454 S.E.2d 441 (1995) cited by the defense, the Court excluded any reference to the DUI count (per se) for driving with an unlawful blood alcohol level.
The trial (and pre-trial motions) lasted all or part of three days. Mr. Head called (as defense witnesses) numerous fact and expert witnesses to prove that the test result on the Intoximeter 3000 was likely erroneous, due to the Defendant's exposure to glue and paint thinner while working on a construction job as well as from the smokeless tobacco that he kept in his mouth all day long (he swallowed the juice). Moreover, Defendant testified that he had "a pinch between his cheek and gum" (Copenhagen) when tested on the breath device. Mr. Head called Mr. Phil Hancock (former Director of the Implied Consent breath testing unit of the Georgia Bureau of Investigation) who testified that [when he ran the breath test program] he had run experiments which proved that the chemicals in smokeless tobacco could actually cause a "false positive" reading on an Intoximeter 3000 if any residue was in the person's mouth. TFC Jack Denny (the area supervisor who serviced and repaired the Intox 3000 machine) testified that all Intox 3000 operators were trained to not offer a breath test to any subject with any substance (such as tobacco or gum) nor to anyone who had been exposed to paint fumes or similar volatile chemicals, due to the fact that an Intox 3000 could not tell the difference between alcohol and these chemicals. According to the arresting officer and other witnesses called by Mr. Head, the Defendant's clothing, shoes and vehicle had evidence of paint materials, and Defendant also told the arresting officer that he had just left work where he was painting and gluing plastic PVC pipes together for the plumbing within the new house under construction.
A co-worker testified that he had been with Defendant continuously on the day in question from 8:00 a.m. to 5:00 p.m. and that Defendant did not consume any alcoholic beverages. Defendant was stopped at 6:32 p.m. while en route home from the job site. Under cross-examination, the co-worker said that in the four years he had known and worked with Defendant he had never known him to have a single drink of alcohol.
After twenty minutes of deliberation, Defendant was acquitted of all DUI charges and driving without a tag.
Judge Lenwood A. Jackson is now deceased, but was the chief trial judge of the City Court of Atlanta and presided over this and over more than 80 trials handled by Mr. Head before this same judge between 1994 and 2003. In 2006, the new Municipal Court of Atlanta Building was named for him. It was the first court building in history named for an African-American within the State of Georgia.
Administrative law
Challenge to Administrative License Suspension Law
Sep 21, 1994
OUTCOME: Mr. Head Sought to Overturn ALS Law in GA
In Rebich v. Miles, 264 Ga. 467, 448 S.E.2d 192 (Ga. Supreme Court,1994), Mr. Head sought to overturn a State law that allowed a person who had allegedly refused sobriety testing to remain suspended ev...en after he or she had been acquitted by a jury of the DUI charge. In fact, at trial, Mr. Head proved that the officer was a liar, and the jury chastised the prosecutor for not dismissing the case and requiring them to find Mr. Rebich not guilty.
ALthouhg this case did not cause Georgia law to change, Mr. Head appeared before the Georgia Legislature in 1994, and the law did get changed to reflect this unfairness. Now Georgia and one other state have laws to cause this, and this puts a premium on winning DUI cases..
DUI and DWI
High Speed Driver with 0.11 Breath Test Found "Not Guilty" of DUI
Sep 14, 1994
OUTCOME: Not Guilty on DUI Charges
Darrell K. and his brother wrapped up a July 4th outing and night of fun by dropping off three other friends and then driving 88 mph in a through northern Dekalb County at about 2:30 AM. A state troope...r saw the car, gave chase at speeds topping 110 mph, and obtained a Vascar reading of 88.5 mph. After beginning to ticket Client, the officer testified that he noticed the smell of an alcoholic beverage, and asked Darrell if he would consent to some voluntary field tests. At pre-trial motions hearings, Mr. Head had questioned the officer about the field sobriety tests and the "time" between the arrest and the testing on the Intoximeter 3000. The officer testified under oath at both the motion hearing and at trial that he had waited at the Doraville police station for 20 minutes before testing Client. He testified that if he had not done that, his breath test result would not be reliable. (Darrell K. later testified that he was walked straight in to the Doraville station and placed at the machine with no observation period.)
We subpoenaed the tow truck records to show that the arresting officer's version was impossible, since the trooper had also sworn that he waited for the tow truck to leave the scene before transporting Darrell. Indeed, the tow truck records showed the officer's signature authorizing the tow of the vehicle. Darrell's brother (who had been a passenger) also testified that the trooper stayed at the roadway until the car was towed. The arresting officer also testified that it took 8 to 10 minutes to get to Doraville PD from the arrest site on Peachtree Industrial just outside I-285. A test result of 0.11% was obtained by the arresting officer, who was a certified Intox 3000 operator. The officer testified that he had given correct implied consent advisements, despite the Darrell's testimony that no card was read to him at the scene at all.
To create reasonable doubt about the reliability of the 0.11% result, we subpoenaed Georgia State Trooper TFC Jack Denny of the Calhoun, GA post. Denny was one of three area (North Georgia) supervisors for the Intoximeter 3000. He trained officers on breath testing protocol and procedure. He serviced and maintained breath machines for the GBI. He testified that due to the lack of 20 minutes of direct observation, that the test result was unreliable. He also stated that the "observation" procedure followed by the arresting officer violated training for breath testing operators. Rick Swope, of Davie, FL, who is certified on the Intox 3000 and the Intoxilyzer 5000 confirmed that the waiting period was absolutely essential to obtain reliable breath test results.
We also benefited from impeachment created by the officer testifying at the motion hearing 18 days earlier that he turned Darrell away from oncoming lights and the blue strobes to do the HGN (eye jerking) test. At trial he changed this, and under cross-examination, admitted that he had testified falsely under oath.
To add credibility to the defense version of the facts, we brought in three fact witnesses who testified (1) that Darrell had consumed very little alcohol, and none at all for more than three hours prior to the stop, (2) that Darrell had suffered from and been medically treated for gastric problems [G.E.R.D.], and that he took prescribed medication for the stomach malady, and (3) that, on the night in question, Darrell had driven more than 70 miles around Atlanta, without incident and without speeding, prior to the 88 in a 55 that got him pulled over.
To bolster the Darrell's personal credibility, we brought in two respected businessmen who knew Darrell's reputation for truthfulness in the community. These character witnesses were pillars of the community. Although brief, their testimony established Client as a truthful person, compared to the trooper, who testified forcefully and without flinching, even when he was lying under oath.
The jury acquitted Darrell on both DUI counts-per se & impaired
DUI and DWI
State v. Frank B [Accident Caused by Client Veering to Shoulder of Interstate Highway & Hitting Parked Car; 0.12 BAC]
Jul 28, 1994
OUTCOME: Not Guilty to DUI - Accident
Defendant, a staff sergeant in the U.S. Marine Corps based in their Lawrenceville recruiting office, went out "on the town" with another Marine who was temporarily assigned in the Atlanta area. Per the... other man's request, on St. Patrick's Day of 1994, Defendant took him to a club to meet some people and have a good time. Following an exhausting twelve-hour day at work and fast dancing for about four hours, Defendant collected his friend and left for home at 3:00 A.M. After making some minor repairs to his truck, Defendant drove north from Buckhead on Interstate 85 while his passenger curled up and slept. After about twenty miles, Defendant momentarily nodded off at the wheel and awoke just before striking an abandoned car parked in the right emergency lane.
Officer T.W. Smith of the Gwinnett County Police, who was using stationary radar about 500 feet ahead of the vehicle, observed the accident in his rear view mirror and arrived on the scene immediately. He found Defendant outside the car assisting the passenger, who had hit his head on the windshield and was bleeding but was not seriously injured. Smelling alcohol on Defendant's breath, DUI Task Force Officer Smith asked about alcohol consumption and Defendant replied that he had had a "couple of beers" a couple of hours earlier. Defendant was able to perform the physical field sobriety tests, including the one-leg-stand for 46 seconds (he intentionally went further than "30" to try to prove his sobriety), although the officer testified that Defendant "failed" these and the "ABC" test. Defendant was asked to take the official breath test, then arrested and charged with two counts of DUI, failure to maintain lane, operating without license in possession, no insurance, and no proof of insurance. The hand held breath test rendered a 0.12% result.
Mr. Head took over the defense of this case from another attorney. That attorney had lost all motion hearings, and Mr. Head needed to request a re-hearing on the Motion to Exclude breath test results. Reluctantly, the Judge did grant this request.
After taking the official test and again rendering a 0.12% result, Defendant requested an independent blood test and was taken in handcuffs to the hospital emergency room. Although he did not have the $105 cash for the blood test, he did have his ATM card. The arresting officer did not suggest to Defendant to use the ATM machine located in the hospital or allow him to wait for someone to bring the money for the test to the hospital. Based on these facts, in a preliminary hearing the court (Hon. Robert Mock) granted the Defendant's motion to suppress the State's official breath test results.
Because Judge Mock was compelled by favorable Georgia law to exclude the breath "number", the case proceeded to jury trial without the "per se" count. Under direct and cross examination at trial, Defendant revealed he had consumed three beers over a four-hour period and felt no effects from the alcohol when he left the club. After testimony that the missing documents had scattered in the car upon impact, the court directed a verdict of acquittal for the Defendant on all charges relating to "no insurance" and driving without a license. The jury found Defendant guilty of the lane violation and acquitted of DUI. Unfortunately, the week before trial, the U.S. Marines terminated Defendant after 12 years of service, based entirely upon this incident. So, he was never given the chance (by the Marines) to wait and see what the jury decided in his criminal case.
He was fined $50.00 for the lane violation, with no other penalty assessed. At least he did not have to carry a DUI conviction back to his home state of North Carolina.
Divorce and separation
Divorce Trial - Over Alimony - Full Week Long
Jul 22, 1994
OUTCOME: Husband (Mr. Head's Client) Was Victorious
This trial was the talk of the town for years afterward. Why? Because the ex-wife (they were only arguing over Alimony -- all other issues as well as the divorce itself had already been decided) wante...d everything the man earned, and perjured herself on the witness stand.
This trial would make a good book. The ex-wife, whose entire sordid sexual "history" was part of this trial, sought to punish Mr. Head's client. All of the many deceptions and misuses of his money were front and center for the jury.
Her miscalculation came from not thinking the defense would be ready. We were able to prove:
1. That she had "faked" a series of Polaroid photos of her bruised neck and face to be able to claim he had abused her. She took the witness stand and blatantly lied about the circumstances causing the bruising. In fact, these ephotos were taken by her daughter and mother, at her request, but were really photos of her healing face following a facelift THAT Mr. Head's client PAID FOR!
2. She took his charge cards (in his name only) to about 6 stores and charged over $10,000 in needless purchases just before she filed for divorce. For example, she bought over 400 packages of Tic Tacs, and similar items at local drug stores.
3. She went to a psychologist to convince him that she had been so abused that she had developed multiple personalities. In fact, she was mimicking the book "Sybil", and we were able to totally discredit her about these issues. She lied about never having read the book "Sybil", but when Mr. Head questioned her daughter and her mother, they both recalled her discussing how much she enjoyed that book.
4. She claimed she was SO ABUSED by him that she was UNABLE to have sex. We brought in numerous witnesses to verify her "alley cat" behavior at the Frog Pond Lounge with a series of men that she had met the same night she went to rooms that the men rented at the adjacent Ramada Inn.
5. Mr. Head subpoenaed her gynecologist to bring her medical records. We proved that she had contracted condyloma (a painful sexually transmitted disease) more than 6 MONTHS after she had completely split up with Mr. Head's client. The OB-GYN testified that the condition had NOT been there before and that the painful nature of these genital sores would require her to get immediate medical attention and medication.
6. Before she turned over the ex-husband's part of the household goods (setllement agreement of the split of personal property from the marriage) she used a hammer to damage the furniture and his car so badly that they were worthless.
7. She asked for permanent alimony of $1650 per month from a man whose takehome pay was $2300. We asked the jury to award her $800 per month for one year, and then cut her off. That is what they did. We feared that if she received NOTHING, she might appeal that, which would cost Mr. Head's client even more money.
This case had many more twists and turns, and ran into the late evening twice. The woman's own daughter (her natural child, and my client's adopted child) was our star witness, basically telling the jurors that she feared her mother who had threatened her life on more than one occasion.
Sadly, the trial judge for the case, Judge Joe Gaines has since passed away.
Chapter 7 bankruptcy
In Re Fontana
Nov 01, 1988
OUTCOME: Challenge by Creditor in Chapter 7 Defended
On October 1, 1986, Defendant (Fontana) and his then wife, entered into a lease with Plaintiff (Creditor) for the rental of an apartment for a term of twelve months. The monthly rental payment on the a...partment was $380. Defendant also agreed to pay an additional $45 per month for the term of the lease as his portion of the costs of new carpet. The total monthly payment was thus $425.
Defendant made the October, November, and December payments for 1986. Defendant made the January 1987 rental payment on January 7, 1987 by a check dated January 1, 1986.
Although the January check was dated 1986, it was obvious to the Court that the check was intended to be dated 1987. The error was of no consequence in this trial.
Defendant and his wife were having domestic problems in January 1987. She moved out of the apartment on January 9, 1987, and Husband moved out on January 10, 1987. Husband contacted Plaintiff's resident manager to give her an address in New York where he could be reached. Sometime before leaving, Defendant stopped payment on the January rent check.
Plaintiff contends that the $425 check on which Husband stopped payment is an obligation that is nondischargeable in bankruptcy. The complaint filed in this adversary proceeding alleges other damages, but at trial the only issue presented to the Court was the nondischargeability of the $425 January rent check under section 523(a)(2). All other alleged damages and theories of recovery were abandoned by Plaintiff at trial.
The judge ruled for Mr. Head's client, based on no proff of intent to deceive the creditor.
Brain injury
Hughes v. National Service Lines of New Jersey, Inc. and Michigan Mutual Insurance Co
Sep 29, 1988
OUTCOME: Trucking Co Pays $500,000 for Brain Injury Crash
Hughes was a self-employed bulldozer operator who only had a first grade education. He was 63 years old at the time of the collision, and made his living running heavy earth-moving equipment. While i...n his pick-up truck returning from a service station with a full 55 gallon drum of diesel fuel for his bulldozer, an oncoming tractor-trailer driver was speeding along Highway 72 in Elbert County, GA. The vehicle ahead of the tractor-trailer slowed to be able to turn left. The driver of the speeding tractor-trailer saw that he did not have time to stop before striking the rear of the small vehicle, and had to make a split-second decision to either go off the highway to the right side of the small car (where a slope led to a small water runoff drainage area), or attempt to veer left (across the lane where Mr. Hughes was traveling) to a flat surface that would likely not cause his rig to overturn. He chose to go in the direction that would not flip his tractor-trailer rig, and Mr. Hughes' pick-up was not able to avoid the collision with the set of rear tires of the tractor-trailer rig. Mr. Hughes was knocked unconscious by the impact, and suffered a bad scrape and bruising of his upper forehead and scalp. He was awakened by other motorists shortly after the crash, but was dazed. He was soaked in diesel fuel, which had slammed into the cab of the pickup truck and erupted. He feared being burned alive, since the doords would not open on the pickup, due to compaction of the front end of the truck. A precautionary hospital visit to a local hospital resulted in his release 4 hours later. The total medical costs were less than $500, and the medical tests revealed no permanent damage. The probelm with the case was that every time Mr. Hughes got back on his earth-moving equipment, he became nauseous. The problem persisted, even after two more neurologists declared him to be fine. Because Mr. Hughes had never missed work before due to any health issues, and (prior to this visit) had never been in a hospital, the correlation to this collision was obvious. Fianlly, an Emory specialist in complex head trauma cases found the problem: his skull was cracked longitudinally, running from the center of his nose area straight back across the top of his skull. This crack was not detected on the routine scans that were done, but was picked up by special equipment at Emory University Medical School.
At the eve of litigation in Fulton County State Court, the case settled in 1988 for $500,000, despite the relatively low earnings of Mr. Hughes, his first grade education level and his age of 63 years at the time of the incident. The amount he received, combined with social security, allowed him to retire in fairly good financial shape, if the money was conserved.
Divorce and separation
Mother Awarded Change of Child Custody for Two Sons
Apr 29, 1986
OUTCOME: Obtained Change of Custody to Mother
Mr. Head represented the mother of two young boys on a child custody change petition. The mother had lost custody based on not taking her medication for diabetes, and had now changed her life, remarri...ed and was seeking to retake custody. The case was heard by Superior Court Judge James Barrow of Clarke County. The hearing went on for days at the trial level until she was ultimately awarded custody. The attorney for father appealed all the way to the
Georgia Supreme Court, but the award to the mother was sustained.
