DUI Accident with Injuries Case Won by Mr. Head Proving Judge Made Error by Declaring Mistrial After Jury Empanelled
DUI and DWI
Mar 21, 1996
Total Victory when Judge Wrongly Granted Mistrial
Case citation: 224 Ga.App. 8, 479 S.E.2d 406 (1996)
Kenny J. was charged with DUI and failure to maintain lane in 1993 involving an accident with injuries. His test result was well above the legal limit. On his behalf, Mr. Head filed numerous motions prior to trial, including a request for a copy of the accusation showing each and every charge that Mr. J faced.
Trial of the case was first called for jury trial on January 22, 1994. The defense announced â€œready.â€ The jury was empanelled and the trial was ready to start. Then, the prosecutor attempted to BROADEN the DUI charges to add other types of DUI (e.g., being above the legal limit) which had not been previously accused. Mr. Head objected, saying that jeopardy had attached, and no new charges arising from this driving incident could be added. The prosecutor suggested a continuance for the Defendant, and Mr. Head objected to the fact that this would require a mistrial, and that jeopardy had already attached. The judge granted the prosecutorâ€™s request over Mr. Head's strenuous objections and a mistrial was declared.
When the court called the case for trial again on June 23, 1994, Mr. Head filed a Motion for Discharge and Acquittal, basically saying that another trial was barred, due to the fact that another jury had been empanelled and the trial judge had improvidently granted a mistrial over the defenseâ€™s objections. The judge denied Mr. Headâ€™s motion, From this ruling, Mr. Head immediately appealed to the Georgia Court of Appeals, saying that a direct pre-trial appeal was appropriate, due to former jeopardy. The Court of Appeals agreed.
Here are some quoted lines from that 1996 opinion:
â€œAfter the jury was impaneled and sworn the State proceeded on an accusation charging violation of driving under the combined influence of two or more specified substances in addition to the charges contained on the UTCs. The accusation was not served on Jefferson prior to trial.â€
â€œThe trial court's statement that Jefferson â€œwanted more timeâ€ to prepare inaccurately suggests that Jefferson acquiesced in the mistrial. Jefferson's counsel never acquiesced; counsel made the comment only in response to the trial court's question as to whether he intended to â€œproperly prepareâ€ for the additional count in the event a continuance or mistrial was granted. The trial court failed to consider less drastic alternatives, and nothing in the record shows that it factored into its decision Jefferson's right to be tried before the sworn jury. It also failed to consider the surrounding circumstances, notably that [Client] was served with a copy of the accusation after the jury was impaneled and sworn even though he requested a copy three months before the trial.â€
â€œThe record indisputably shows that the trial court's action was undertaken in circumstances that were not urgent and without regard to the State's failure to inform [Jefferson] of the charges on which it intended to proceed. Moreover, the trial court gave no â€œconsideration [to] alternative remedies which would have preserved [Client's] â€˜valued rightâ€™ to proceed with the trial. Consequently, [Client's] plea in bar was erroneously denied.â€
RESOLUTION: Mr. J walked away from all charges, without ever having to risk a conviction with the jury, due to the combined errors made by the judge and the prosecutor. This was Mr. Jâ€™s second DUI charge, and a conviction would have had lifetime consequences for him.
High Breath Test, Single Car Crash into Interstate Retaining Wall & Open Containers - NOT GUILTY
DUI and DWI
Jul 08, 1999
Not Guilty of All Charges
T.M., a traveling sales representative licensed in another jurisdiction, had a single car collision shortly before midnight as he traveled I-20 eastbound from Alabama to Atlanta. He hit an I-20 guard rail on his eastbound trip to Atlanta from Alabama. He pulled off at the next exit, Fulton Industrial Boulevard, to assess the damage. It was severe, and the front bumper was dragging. As the car limped into an industrial park occupied by three adult nude strip clubs, a private security guard stationed in the parking lot heard the dragging front bumper, and came over to his car to see what was going on.
Mr. Head's client told him that no other car was involved, and that the police need not be called. The client unsuccessfully tried to go inside the nearest strip club, for a beer. The guard said "No way, you are drunk already."
As soon as the next county cop passes by, the guard hails him down, and a DUI investigation ensues. T.M. later took the State's breath alcohol test, which revealed 0.154/0.162 BAC. Trooper First Class Magwood of the Georgia State Patrol handled the arrest after he was called to scene by the Fulton County deputy. The Fulton County officer could not ascertain whether the wreck with the Interstate barrier happened in Cobb County (meaning he may not have had jurisdiction over that violation) or Fulton County. A video of the field sobriety tests showed a generally poor roadside performance. T.M. admitted having 4 beers "earlier", with no other elaboration. The video showed 7 beers, cold and wet, being taken from the wrecked vehicle, plus other empty beer cans. Some of them were spewing or dripping their contents as they were taken out, since they were damaged and exploded during the collision.
While seated in the rear of the patrol car, T.M. gave a spontaneous "mea culpa" statement to Magwood, who left the video running all the way to jail. This statement would typically have ended our chances of winning, especially if a jury heard these words.
A speedy trial demand was filed, which put the case on a quick calendar. Mr. Head then withdrew the "jury demand" and opted for a bench trial with Judge Myra Dixon, reserving all motion issues for the trial portion of the case. Jeopardy attached, and trial began.
The state had 4 witnesses (the guard plus 3 police officers). Mr. Head called no witnesses for the defense.
Our key issues were the "timing" of implied consent. Also, no one proved an exigent circumstance to justify the long delay in reading these rights to T.M. Furthermore, the Fulton deputy had put T.M. in the rear of his patrol car for over an hour, uncuffed. We successfully argued "custody", and no Miranda rights. All field tests and the video of same were excluded from evidence by Judge Dixon, based on our legal arguments and citation of key appellate cases.
Judge Dixon found T.M. not guilty on both DUI counts. The breath test results from the Intoxilyzer 5000 were 0.154/0.162, but Mr. Head successfully argued that the results had to be suppressed. The "no proof of insurance" charge was nol prossed by Assistant Solicitor Oliver Murray prior to trial, since Mr. Head's client was not licensed in Georgia, and had no obligation to prove insurance coverage, as mandated for Georgia licensees.
DUI - Refusal & Three other Charges - Not Guilty on All Counts
DUI and DWI
May 18, 1999
Not Guilty to All Charges
Defendant E.Y. was temporarily assigned to work in the Metro Atlanta area. He was from Mississippi.
While in his company vehicle, he and a co-worker were cruising around at 3:30 A.M., trying to find an open bar. As they proceeded up Cobb Parkway, Sgt. Rokovitz noticed the GMC Yukon not stop completely behind the "balk line" (the painted white line demarking an intersection at a traffic light). Rokovitz then turned on his video camera to record E.Y.â€™s driving conduct.
First, E.Y. attempted to go to a nude bar which had just closed. E.Y. then pulled out of the center turn lane and moved back into traffic. Rokovitz followed.
After another 1.3 miles of following the GMC Yukon, E.Y. signaled a left turn into a convenience store. However, he pulled across the "gore lines" (yellow hash marks painted on the road to signify "no traffic") just beyond a concrete median. Rokovitz then activated his blue lights.
The pullover location was in the convenience store parking lot. The entire stop and conversation was video and audio taped. E.Y. admitted drinking and reluctantly attempted to perform field testing. Every field test was failed miserably, according to Rokovitz. The video tape showed that E.Y. could not balance on one leg and (when attempting the alphabet for the second time) showed E.Y. cursing about his inability to recite the ABCâ€™s.
Rokovitz arrested Defendant and charged him with four offenses:
(1) Not stopping behind the balk line;
(2) Lane violation (for allegedly touching the white fog line once);
(3) Improper turn across the gore lines; and
E.Y. refused to be tested at the hospital. At a pre-trial motion evidence of E.Y.â€™s alleged "refusal" to submit to a blood test was suppressed, based on the officerâ€™s failure to properly read his implied consent rights.
A two day jury trial resulted after no reduction of charges could be negotiated. Because E.Y. would lose his license and job upon conviction for DUI, he had no choice but to challenge the Stateâ€™s case. Plus, this was a third offense for him. Inasmuch as he had a pending case in Mississippi and an older conviction in another state, the stakes were very high.
A motion for directed verdict of acquittal eliminated all charges except the DUI, based upon improperly drawn accusations. The jury considered only the DUI charge and acquitted E.Y. in 75 minutes. He walked away from all charges "Scot free".
The trial judge was Harris Adams, who was then the chief judge in Cobb County. He is now a Georgia Court of Appeals judge.
Speeding Client with 0.17 BAC Level Found Not Guilty of all Charges (including Speeding)
DUI and DWI
May 16, 1999
Not Guilty on All Charges (DUI and Speeding)
Defendant, who was 21 years of age at the time of arrest, was charged in Lumpkin County, GA with DUI and speeding based on radar (77 in a 55). Defendant had two underage females with him in the car. The Defendant had a "Blow-pop" sucker in his mouth when stopped, which the officer immediately attributed to him "trying to mask the smell of alcohol". The arresting officer was the supervisor of the DUI Task Force and the Countyâ€™s most experienced officer, having arrested over 1500 DUI suspects.
The roadside agility tests were all allegedly failed by Defendant, and the hand-held alcohol screening device [Alco-sensor] also showed positive for alcohol. The breath test of 0.17% had been excluded from the State's case-in-chief by stipulation, due to faulty implied consent advisements given at the time of arrest.
In presenting the Stateâ€™s case, the prosecutor omitted reference to any of the numerous positive factors shown in the police report and field sobriety scoring sheets. On cross-examination, the officer admitted to not asking any significant screening questions about the Defendant's health (before starting field testing) other than "do you have any problem with your eyes?" and "do you have any knee or ankle problems?" The officer also admitted that he did not follow the NHTSA scoring method and "clues", because he had done so many cases that he "just got an overall impression" and made his decision to arrest.
The defense case relied virtually entirely upon the testimony of one of the two female passengers, who was 19 years old at the time of Defendantâ€™s arrest. She admitted to drinking alcohol (two beers between noon and 3:00 P.M.) and being underage at that time. The second passenger had only been in the car (and only with Defendant) for some 40 minutes, and also was scheduled to testify until her vehicle was rear ended by a car on the evening of the first day of trial. She was medically unable to return to testify.
Our one witness testified as follows:
The female friend verified the lack of beer at the rock-climbing location, the lack of a smell of alcohol on him when he arrived from Tennessee, his clear speech and normal conduct all day long, his ability to rappel 900 feet and the fact that she was his passenger for over 125 miles of driving through winding, mountain roads prior to the speeding incident leading to J.G.â€™s arrest.
After the defense rested, the prosecutor asked the court to permit introduction of the previously excluded 0.17% breath test result, "for rebuttal". Mr. Head objected, based upon 6 separate grounds. Despite Mr. Headâ€™s objections, the State was permitted (in rebuttal) to introduce not only the breath test result, but also testimony from a so-called State expert (Gwinnett County officer Bill Blodgett) on the effects of alcohol on the human body.
The State's expert opined that it was impossible to reach 0.17% on one beer, and that a person of Defendant's size would require about 9 beers in a two hour period to reach such an elevated BAC. Mr. Head leveled a series of questions about the average rate of elimination of alcohol for this 220-pound man.
The key to the case was asking the State's so-called â€œexpertâ€ to (a) assume that our witness (the 19-year old female passenger) had testified truthfully about no alcohol from 4:00 P.M. to midnight, (b) calculate what his starting BAC level would have had to have been before "eliminating" down to 0.17%, and (c) calculate how much beer the Defendant would have had to consume to have reached such a BAC level [more than a 0.40%]. His answer on quantity was "about 2 gallons". The guffaws of laughter from several of the jurors reflected their disbelief of the Intoximeter 3000's accuracy and reliability, and portended doom for the prosecution's case.
Due to inability to prove a "radar" case, a defense motion for directed verdict of acquittal eliminated the speeding charge. The jury deliberated for 50 minutes & found him not guilty of all remaining charges.
Clemson Student with Missing Florida Tag Gets Pulled Over in Bulldog Country & Charged with DUI
DUI and DWI
Jun 04, 1996
Not Guilty of all Charges
Defendant, a 21-year old Florida resident who attended Clemson University, was stopped in Downtown Athens after the 1994 Georgia-Clemson football game in Athens. (Clemson won, by the way!) The reason for the stop was "no tag on vehicle". His temporary tag on the new car had fallen down in the rear window and was not visible.
Defendant fully cooperated with the officer, and was exceedingly polite to the officer. The officer, a University of Georgia police officer with marginal training on field sobriety tests, admitted that he had learned field tests from another officer whose grasp of field testing was poor, at best. The three tests given included saying the alphabet from "F" to "F" (yes, start with "F", go to the end and start over and go back to "F"), a finger count test wherein the five fingers of one hand were supposed to be counted by touching the fingertips of all five fingers twice, and a walk & turn-type test, with about half the proper instructions for the evaluation to make any sense and a defective demonstration.
The officer told the jury that the Defendant failed all of his "homegrown" sobriety tests, although the officer admitted that he had no particular scoring system, other than his own general, subjective perception of performance by Defendant. He was particularly tough on counting off for alleged manifestations of impairment which he had not instructed Defendant were part of these tests. The officer also verified that Defendant had reported "bad knees" from previous soccer injuries.
Because Defendant wanted to call someone to decide whether to take the official sobriety test, and was refused permission to do so, he refused to submit to breath testing.
After unsuccessfully arguing for exclusion of the refusal at the motion hearings in 1995, Mr. Head asked for review of this decision when the case came up for trial in June of 1996. The basis for exclusion was (a) that the implied consent advisements were deficient due to not advising the Defendant, as a non-resident licensee, that his privileges to drive "AT LEAST" in the State of Georgia would be impacted by his decision to be tested or to refuse under the implied consent law [State v. Coleman, 216 Ga. App. 598 (1995) and State v. Renfroe, 216 Ga. App. 709 (1995)], and (b) in October of 1994, the portion of the warning which threatened that if he submitted to testing and the results indicated a BAC of 0.10% or more, his "license or privilege to drive may be suspended for a minimum period of one year" was factually incorrect inasmuch as Defendant had no prior DUI convictions, and that prior to January 1, 1995, the advisement given was only applicable to repeat offenders. The judge, Kent Lawrence, reconsidered the prior ruling and excluded the refusal.
At trial, the defense called Defendant's friend, a 22-year old female friend from his high school in Florida. She had been with him the whole evening, and testified that he had no alcohol from about midnight until the traffic stop at 4:32 A.M. This was partly due to Athens' early closing time taht was enforced at that time. Defendant also testified in the case, and indicated that from 6:00 P.M. to midnight, he had 5 drinks, with no other alcohol when they went to the 40 Watt Club to dance after leaving the bar where they had eaten. We also brought in Bill Taylor, a Georgia expert on field testing who testified that the officer's homemade field tests were totally meaningless, and unreliable to prove sobriety or lack of sobriety.
The jury deliberated for 35 minutes before returning a not guilty verdict on the DUI.
Clayton County Driver Weaving Between Lanes with 0.16 Breath Test Result and Video Aquitted of DUI
DUI and DWI
Nov 09, 1995
Not Guilty of DUI Charges
Defendant K.H. was see not maintaining his lane on I-75 South. A DUI Task Force officer monitoring traffic coming from south Fulton County into Clayton County pulled him over at the Office Depot (Arrowhead) Shopping center off Tara Boulevard, 1/2 mile later. Virtually the entire pursuit and stop were videotaped.
Defendant denied consuming any alcohol initially, and again denied drinking, when the officer later tried to ask how many drinks he had consumed. NHTSA standardized field roadside exercises were given, and the officer evaluated the Defendant's performance as unsatisfactory on all 3 evaluations.
A subsequent breath test revealed a 0.16 BAC level. However, the breath test result was excluded at pre-trial motions under O.C.G.A. Â§ 40-6-392(a)(1)(A).
The officer claimed that the surface upon which the field evaluations were given was "level". Mr. Head introduced expert testimony from Rick Swope, of Davie, FL that the slope of the parking lot was too steep for proper field testing and was nearly twice the permitted grade of state highways. The trial judge, without any request from defense counsel or the prosecutor, ordered a van from the Sheriff's Department to take the parties and jurors to the location for a view of the slope. The judge also accompanied the jurors, and all jurors were permitted to walk the surface where the field exercises took place.
After the jury returned, closing arguments and jury instructions were given, Defendant was found not guilty of DUI, and guilty of lane violation (which was clearly shown on the video tape). The jury deliberated for 24 minutes.
Speeding and Weaving Lead to Pullover of Repeat Offender with 0.22 Breath Alcohol Test
DUI and DWI
May 02, 1995
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 obtained 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.
Client's Pickup Struck Telephone Pole Head-on; High Breath Test Readings, Yet Totally Acquitted
DUI and DWI
Feb 26, 2002
Trial Victory Overcomes Adverse Appellate Ruling
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 Atlanta. 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 â€œthe 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.
State v. Frank B [Accident Caused by Client Veering to Shoulder of Interstate Highway & Hitting Parked Car; 0.12 BAC]
DUI and DWI
Jul 28, 1994
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.
Successfully Using an Expert Witness to Estimate Blood Alcohol Level for DUI Suspect & Also Excluding State's Test
DUI and DWI
Jan 24, 1996
Not Guilty on DUI Charge for Emory Student
Defendant, an Emory University student who came to college from California, was charged with speeding, driving left of center and DUI (less safe). The incident occurred at 2:00 AM on Clifton Road, directly in front of the Emory University Hospital. The pre-trial phase of the case became heavily involved with questions of the admissibility of field sobriety tests, especially where the roadside suspect had a BAC of less than 0.10% alcohol in his system (0.10 grams percent was the level at which NHTSA field tests have a correlation to sobriety or lack of sobriety). The trial judge let the testimony about the deficient field tests into the case. Despite the officer testifying that he learned certain field test procedures in the NHTSA course, the judge was initially inclined to grant the Solicitor's pre-trial motion in limine that NO REFERENCE to "NHTSA" standards be made in the case. This order was vacated when NHTSA FST expert Rick Swope testified at a later "proffer" hearing, establishing that every state had adopted NHTSA, including Georgia. The officer had been through the NHTSA certified training, yet chose not to follow this "standardized" training in his method of scoring the tests, method of instructing the tests, and the total failure to demonstrate the tests. Upon my request that he fully demonstrate the tests, he declined to get up and do them. The judge even asked him to "try", and he still politely declined. All credibility for the tests as being a valid indicator of sobriety evaporated with this failure to perform.
The officer had obtained a test result of 0.08% on a breath test. However, the implied consent advisement that the officer verbally gave to D.P. was defective, and a decision on whether to exclude the test results had to be made by the trial judge. The assistant solicitor moved to exclude the results at the pretrial motion hearing, and, after some reflection, we agreed to this motion.
At trial, the defense called Rick Swope from Davie, FL, an expert witness on field sobriety testing and on forensic breath/blood testing. Swope was called for two purposes: (1) to listen to and observe the arresting officer on administering the field sobriety exercises, and to testify that the field evaluations given D.P. were " not valid" because of departure from NHTSA guidelines; (2) to use retrograde extrapolation to establish the "range" of alcohol (between .05% and .08% at the time of arrest), based on body weight, food intake, time and quantity consumed. Once the defense had Swope testify and also had the Defendant provide evidence of his activities, including alcohol consumption, the State moved unsuccessfully to introduce the previously excluded 0.08% reading on the Intoximeter 3000, as rebuttal evidence.
After much discussion and legal research, the trial judge denied the Prosecutor's request to allow the 0.08 test result back into the case primarily due to the fact that Swope's testimony covered the range of 0.08%, so no impeachment or rebuttal was authorized. The two day trial resulted in a not guilty verdict on the DUI charge, and guilty on the other two traffic offenses.