The United States Constitution,6th Amendment to the Bill of Rights states,

"In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district where in the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence."

The Georgia Constitution provides in Article1, Section1, paragraph XIV, titled, "Benefit of counsel; accusation; list of witnesses; compulsory process" as follows:

"Every person charged with an offense against the laws of this state shall have the privilege and benefit of counsel; shall be furnished with a copy of the accusation or indictment and, on demand, with a list of the witnesses on whose testimony such charge is founded; shall have compulsory process to obtain the testimony of that person's own witnesses; and shall be confronted with the witnesses testifying against such person."

The Georgia Constitution often provides more rights than our federal constitution and should never be overlooked.

In the news recently has been the issue of the right to confront witnesses.  In the summer of 2009, in Melendez-Diaz v. Massachusetts, 557 U.S. _____ , 129 S.Ct. 2527 (2009),the United States Supreme Court struck down a Massachusetts statute which allowed a crime lab analysts report identifying a drug to be admitted without person who rendered the analsys showing up for court. The court reversed, on confrontation clause grounds, a Massachusetts Supreme Court decision which had affirmed a cocaine conviction based on the tendering of the report of the crime lab analyst on the basis of particularized guarantees of trustworthiness.  The Supreme Court in an opinion by Justice Anthony Scalia based his decision upon a plain reading of the 6th Amendment's confrontation clause.

The Melendez-Diaz  decision reaffirmed the rule it had announced in Crawford v. Washington, 541 U.S. 36 (2004), that a witness's testimony against a defendant is inadmissible unless the witness appears at trial or, if the witness is unavailable, the defendant had a prior opportunity for cross-examination when the witnesses testimony is testimonial in nature. In Crawford, playing a tape-recorded 911 call of a non-testifying witness was held to violate the Sixth Amendment's confrontation clause.

Georgia practitioners are encouraged to object to both hearsay nature of such reports and the violation of rights guaranteed by the 6th Amendment. As Justice Scalia pointed out in Melendez-Diaz, a government entity whose sole purpose is to gather records at trial is incapacable of availing itself of a business records exception to the hearsay rule. In Walton v. State, 278 Ga. 432 (2004), the Georgia Supreme Court required express a confrontation clause objection to preserve issue for appeal.  "In Georgia, 'hearsay testimony is not only inadmissible but wholly without  probative value, and its introduction without objection does not give it any weight or force whatever in establishing a fact.'" Day v. State, 235 Ga.App. 771 (1998).

Georgia has its own "notice and demand" statute for crime lab reports wherein the prosecutor has the right to notice use of a crime lab affidavit at trial as opposed to a live witness and the defense attorney must file a demand for live witness testimony. See, OCGA 35-3-154.1.  This was in response to Miller v. State, 266 Ga. 850 (1996) where the Georgia Supreme Court made it clear that where lab analysis is needed to prove a crime, a written report is insufficient. To prove the crime, the analyst must testify. In Miller, the Georgia Supreme Court invalidated a newly minted Georgia statute which allowed the state, under certain conditions, to admit an analyst's certificate identifying a drug wthout producing the analyst.

In Carolina .v State, A09A2053, decided January 13, 2010, the Georgia Court of Appeals decided the question of whether a crime lab scientist who actually runs the test must appear in court or only the scientist who interprets the results.  The Court of Appeals ruled that under Georgia case precedent and Melendez-Diaz, ____U.S.___; 129 S.Ct. 2527; 174 LE2d 314(2009), that the defense does not have the constitutional right to cross-examine the lab technician who may have actually performed the tests but just the scientist who interpreted the results. Citing, Dunn v. State, 292 Ga. App. 667 (665 SE2d 377) (2008), ( cited as a "thoughtful and well reasoned opinion of the majority," id. at 673 (Phipps, J., concurring fully and specially); Reddick v. State, 298 Ga. App. 155, 157-158 (2) (679 SE2d 380) (2009); Carter v. State, 297 Ga. App. 608, 610-611 (2) (677 SE2d 792) (2009); see also Rector v. State 285 Ga. 714, 715 (4) (681 SE2d 157) (2009) (trial court did not err by allowing the State's toxicologist to testify about a toxicology report prepared by another doctor where toxicologist reviewed the report and reached the same conclusion as the doctor who prepared the report).

On January 25, 2010, in Briscoe v. Virginia, 559 U.S. ______, 2010 U.S. Lexis 767, in a one-sentence per curiam opinion, the United States Supreme Court vacated a Virginia Supreme Court opinion, Briscoe v. State, 275 Va. 283 (2008), which had affirmed a cocaine conviction using a similar certificate under a similar state law presenting the question of whether the right to confrontation would be satisfied by providing that the accused has a right to call the crime lab analyst who prepared the crime lab report as his own witness. The U.S. Supreme Court remanded the case "for further proceedings not inconsistent with Melendez-Diaz" answering the question with a resounding "No."  Thus, averting a age were criminal defendants could be tried on affidavits and have the onus bringing states witnesses to court to prove their innocence.

The real question becomes where does DUI breath testing fit in in this brave new world of plain reading of constitutional rights?  The secret source code is still out there so only time will tell.

Henry County Police Department in McDonough, GA: Incident & Accident Reports

The Henry County Police Department Records Unit is located inside the Police Headquarters at 108 South Zack Hinton Parkway, McDonough, GA 30253.  The Records Department is open Monday - Friday from 8:00AM until 5:00PM. An Incident Report or Accident Report may be obtained in person from the Records Unit for $5.00. Please allow 3 business days (or 72 hours) from the date the report was filed before a request for a copy of the report is made. The telephone number for the Henry County Police Department is 770 288-8200.

 Police Department Building                                                                                               

The law of diminishing returns is a fundamental principle of economics which is defined as: 

1. The tendency for a continuing effort toward a particular goal to decline in effectiveness after a certain amount of success has been achieved.
2. (economics) A relationship between input and output, such that adding units of any one input (labour, capital etc.) to fixed amounts of the others will yield successively smaller increments of output.

An example would be security.  Assume you live in a neighborhood with one hundred houses, three burglars, no police, and assume a burglar can only burgle one house a night.  With no police, you could assume 3 burglaries a night.  If you add one police officer who can protect 33 houses a night, you would assume the next night you would still have 3 burglaries since 67 houses are left unprotected.  If you add 2 police officers, you would still have 3 burglaries because 2 police can only protect 66 houses leaving 33 houses unprotected. The rate is flat. If you add three police, then 99 houses are protected and suddenly there is only one burglary.  If you add 4 police then 132 houses can be protected, so there are no burglaries.  After 3.03 police have been hired, you have reached the point of diminishing returns. If you add 5 police you are wasting your money, since 165 houses can be protected and there are only 100 houses.   

Now think about the DUI laws.  The Goal of DUI laws is to prevent DUI deaths and injuries.  In the 1970's, the legal limit for DUI was .12 or the level in which most people are considered drunk.  The crime was commonly known as drunk driving. In the 1980's, the legal limit was reduced to 0.10 until about 2000.  In 2000, the legal limit was reduced to 0.08 by then President Bill Clinton in a zero tolerance for DUI bill that tied 0.08 to federal highway funds as was done with the drinking age being raised from 18 to 21 in the mid-1980s. DUI deaths dropped from the 1980s steadily until about 2000.  In 2000, the DUI fatality rates began to climb back to levels not seen since the early 1990s.  

The following is an estimate of Metro Atlanta DUI arrests in selected Metro Atlanta Counties for one week based on publicly available records.  The information is only as accurate as the public records from which it is obtained.  

The following is an estimate of Metro Atlanta DUI arrests in selected Metro Atlanta Counties for one week based on publicly available records.  The information is only as accurate as the public records from which it is obtained.  

The following is an estimate of Metro Atlanta DUI arrests in selected Metro Atlanta Counties for one week based on publicly available records.  The information is only as accurate as the public records from which it is obtained.  

Harris v. State, A10A0119 (12/21/09).  The Georgia Court of Appeals affirmed the conviction of Rodney Harris a man suspected of driving while a less driver after consuming alcohol in a Henry County Bench Trial for DUI despite it being undisputed that Mr. Harris suffered from cerebral palsy a muscular disorder. (According to wikipedia, The classical symptoms of cerebral palsy are spasticities, spasms, other involuntary movements (e.g. facial gestures), unsteady gait, problems with balance, and/or soft tissue findings consisting largely of decreased muscle mass. Scissor walking (where the knees come in and cross) and toe walking (which can contribute to a gait reminiscent of a marionette) are common among people with CP who are able to walk, but taken on the whole, CP symptomatology is very diverse. The effects of cerebral palsy fall on a continuum of motor dysfunction which may range from slight clumsiness at the mild end of the spectrum to impairments so severe that they render coordinated movement virtually impossible at the other end the spectrum. Ataxic celebral palsy may also cause nystagmus. )

Harris was observed driving for a mile or a mile and a half with speeds fluctuating between 30 and 60 miles per hour.  His vehicle weaved within the lane several times.  He had difficulty finding his driver's license.  He admitted to consuming a few beers.  The man had to steady himself when exiting his vehicle.  Again it is undisputed that he had cerebral palsy.  He had a strong odor of alcohol and red and glassy eyes.

The arresting officer performed the HGN test on the Defendant.  According to the Georgia Officer's training manual, the Hgn test estimates blood alcohol content of an individual based on the jerking of the eyes and not impairment.  Mr. Harris exhibited 4/6 clues on the HGN which indicates a 77% chance that the Defendant is 0.08 or greater.  This does not prove impairment because Georgia law clearly holds that alcohol affects different people differently. The The Officer testified that 4 of 6 clues indicated alcohol impairment which is not supported by his training again 4 out of 6 clues only indicates a estimated blood alcohol level. Further, the Officer had difficulty even getting Mr. Harris to follow the stimulus which begs the question of whether the test was even performed according to the Officer's training.  However, there are scores of causes of nystagmus other than alcohol including brain disorders like cerebral palsy.  The Officer admitted that he had never performed HGN on a person with cerebral palsy and did not indicate that his training had addressed the issue. In this case the attorney for the Defendant objected to the admissibility of the HGN because is was not performed according to the officer's training.  However, the Court of Appeals held that the Defendant pointed to no errors in the administration of the HGN test and it was the Defendant's burden to prove how the Officer improperly administered the HGN test.  The Court of Appeals cited Hawkins v. State, 223 Ga. App. 34 (1996) for this proposition of law.  Hawkins does state this but it cites Hunter v. State, 202 Ga. App. 195, 413 S.E.2d (1991) which does not say that the Defendant has the burden of proof as to its objection but only that the Defendant has the burden of making an objection and properly framing it.  In 1976 in Moore v. State, 237 Ga. 269, 227 S.E.2d 241(1976), the Georgia Supreme Court conclusiviely held that henceforth charges which place any burden of persuasion upon the defendant in criminal cases shall not be given and such charges will be deemed erroneous and subject to reversal, absent harmless error and invited error. 

It is clear that placing the burden on the Defendant in this case is what allowed a man with cerebral palsy to be convicted of a DUI  when other than the odor of alcohol and red and glassy eyes are the only factors that can not be attributed to cerebral palsy.  While it is not clear whether this man was actually DUI or not, it is unsettling. This is exactly why the Supreme Court in Moore stated that placing any burden of persuasion upon a defendant in a criminal case violates substantive due process.  The Court of Appeals explained in great detail that it was constrained by the any evidence burden to affirm the appeal but manifest injustice would make a reversal or at least a remand for further evidence to be received on cerebral palsy a possibility.  After Harris v. State, it is apparant that those with disabilities will be required to hire an expert to testify on the affects of cerebral palsy that could be confused with alcohol impairement; thus, placing the burden on Defendant to prove his innocence.  This is a disturbing trendin DUI law that courts are increasingly requiring Defendant to hire experts who charge thousands of dollars to come testify about the inaccuracy of alcohol breath tests and standardized field sobriety test.  Some doctors charge as much as $1000.00 per hour and even retired police officers with special training charge up to $1500.00 a day.  This makes getting a fair trial for someone who can barely afford a lawyer or has to use a public defender almost impossible.  Hopefully, the Supreme Court will address this issue. In the context of a police stop, the burden of proof of establishing that appellee was not subjected to an illegal seizure of his person rests upon the State. State v. Goodman, 220 Ga.App. 169, 170(1), 469 S.E.2d 327; see State v. Johnston, 160 Ga.App. 71, 74, 286 S.E.2d 47, aff'd on other grounds, 249 Ga. 413, 291 S.E.2d 543. One has to wonder why this case is any different.

Fox Five did a story on December 30, 2009 on the cost of an Atlanta DUI. Each year in Georgia about 200,000 people are arrested for DUI.  In the five county Metro Atlanta area, there are more than 20,000 arrests each year.   Their conclusion was that a DUI will cost on average about $10,000.00.  That means that every year Georgians spend $2 Billion dollars on DUI Defense and associated costs! That is Billion with a B.  In Metro Atlanta, DUIs costs people Two Hundred Million Dollars annually.  I would estimate that the government spends at least that amount on arresting and prosecuting DUI drivers which includes police salaries, training, vehicles, equipment (the State Administered DUI Breath test machines cost $10,000 a piece), law enforcement to calibrate the breath test machines, jails, jail staff, courts, court staff, jury fees.  That amount totals $4 billion dollars a year or more to prosecute, fine and jail people who are arguably not drunk at 0.08.  Four Billion dollars could have bought Marvel Comics, Netscape or be the trade surplus of S. Korea and that is every year.  

Atlanta's Fox Five did an interesting break down of costs that I will examine more closely.

Bail: $150-$2,500 (out of pocket expense). Cost of DUI bail depends on how many offenses you've had, circumstances of arrest and your blood alcohol level.  I would estimate that DUI bonds are more in the range of $1200-$10,000, but if you use a bondsmen you will only lose about 12% of that amount.

Towing: $50-$200. The cost of towing and impounding a car can add up daily. Some cities even auction your car if you can't afford to get it back after 30 days.  This is about right.

Insurance: $4,500 or more. One of the biggest expenses an a person arrested for DUI faces is insurance premiums increases.   Insurance rates can rise for three to five years. Rates can likely double, triple or ever quadruple, and companies will classify the policy as high-risk. This is about right but the increase in rates usually spands 3 to 5 years, so it is not $4,500.00 all at one time.

Legal fee: $2,000-$25,000. Some lawyers charge as little as $1,500 for a quick plea or a one time court appearance.  When so much is at stake, many people arrested for DUI chose to fight the charge.  Legal fees get much higher with lawyers would will investigate and fight the charge.  This is about right, but it is important to not to compare the fee of a plea lawyer to a trial lawyer.  There are a small number of DUI attorneys in Atlanta that routinely have DUI jury trials while the majority of lawyers just scare their clients into a plea agreement at the first opportunity.  The way to tell the difference is by the fee charged and simply ask them how many DUI jury trials they have tried.  A lawyer who is going to explore every opportunity to beat a DUI will build that time into his or her fee.  No lawyer can intelligently inform you on your decision to plea to a DUI until at least reviewing the police report, viewing the video and talking to the police officer if not actually having a motion hearing.  The least that can reasonably costs is about $3,500.00.  A public defender in federal court can charge up to $125.00 dollars per hour and a maximum for 2010 of $9,700 for felonies at the trial court level and $6,900 for appeal (previously $8,600/$6,100); $2,800 for misdemeanors at the trial court level (most DUIs are misdemeanors) and $6,900 for appeal (previously $2,400/$6,100); $9,700 for non-capital post-conviction proceedings under 18 U.S.C. §§ 2241, 2254 or 2255 and $6,900 for appeal (previously $8,600/$6,000); $2,100 for most other non-capital representations and $2,100 for appeal (previously $1,800/$1,800).  A private lawyer should be at least 2 to 3 times as much or more as a public defender.  Further, some courts make you pay back your court appointed lawyer fees and if you don't pay you go to jail.  It is also important to remember that a private lawyer will generally have a maximum of 1-5 clients at a given court appearance whereas a public defender may have as many as 10-100 clients at a given court appearance so you are much less likely to be able to speak with your public defender in court in a meaningful manner and never get them on the phone.

Fines: $300-$5000. Depending on your offense, and if there have been any other arrests in the past. This is about right

Alcohol evaluation: $95-$300. An evaluation is required of anyone who is sentenced by court for drunken driving. This is about right.

Alcohol Education and treatment: $500-$4,000 for basic treatment. If you are convicted, you must usually go through an education or treatment program, especially if your license has been suspended. This is about right.

License reinstatement fees: $210-$410. If you are convicted of a DUI in Georgia (or any other state), you can expect to face several fees to secure the reinstatement of your driver's license. After you have completed a state-certified risk reduction program, which costs $287, you can reinstate your Georgia driver's license for a fee of $210-$410. This is about right.

In addition to the "standard" costs of a DUI conviction, there are some consequences that are more difficult to place a number value upon, but can be more devastating to many people. DUI arrests and convictions cost money, time, and can lead to job loss or prevent future employment opportunities by showing up on employment back ground checks including community service hours ranging from 40 hours to 240 hours, probation appointment during work hours, DUI school, alcohol counseling sessions and AA meetings.

Major news outlets are reporting that police are frustrated by the use of Twitter to warn potentially drunk drivers of road blocks.  Police fear that this free dissemination of information may help drinking drivers escape arrest.  This begs the question shouldn't police want people to know about road blocks so they will take a cab or is DUI enforcement simple another means of selective revenue generation.  Studies have concluded that talking on cell phones with an ear piece and without an ear piece, texting while driving, and driving over the age of 70 are dramatically more dangerous than driving at  0.08.  If public safety is really the concern why not make those actions illegal as well.  A society that fears the free flow of information does not sound like a democracy.

Read this opinion from People v. Thill, 696 NE 2d 1175 - Ill: Appellate Court, 2nd Dist. 1998, an appellate decision from Illinois about the effects of albuterol inhalers on DUI breath test devices.

"The defendant testified that he suffers from asthma and that he used a Ventolin inhaler on the night in question at about 6 p.m., 10 p.m., 3:15 a.m., and right before he was stopped by Trooper Clifton. The defendant denied that he was under the influence of alcohol.

Emmet Harmon testified as an expert on behalf of the defendant regarding the effect of albuterol on the breathalyzer used to test the defendant's breath, the Intoxilyzer 5000. Albuterol is an ingredient in the Ventolin inhaler used by the defendant. Harmon stated that the Intoxilyzer 5000 operates on principles of infrared absorption. Under this 1177 theory, organic substances absorb particular wavelengths of infrared light. The amount of absorption is proportional to the concentration of the substance in the path of the infrared light. According to Harmon, ethanol and albuterol fall within the same hydroxyl group tested by the machine, and it cannot differentiate between the hydroxyl compounds of ethanol and albuterol.

Harmon further testified that there are 81 cubic centimeters of air in the air chamber of the Intoxilyzer 5000. He stated that "through some mathematical technique" that amount is calculated to .10 grams of alcohol per 210 liters of breath. He then stated that.0000385 grams of an alcohol compound in 81 cubic centimeters of air would be equal to .10 grams of an alcohol compound in 210 liters of air. In other words, slightly less than four one hundred thousandths of a gram of alcohol would be equal to a .10 reading if it was placed inside the chamber of an Intoxilyzer 5000. Harmon indicated that .000038 grams is equal to 38 micrograms. Harmon then noted that 90 micrograms of albuterol are distributed in a person's lung chamber with one spray from a Ventolin inhaler. The maximum lung retention period for albuterol is approximately two to four hours. Harmon testified that, within a reasonable degree of analytical and chemical certainty, after subtracting any albuterol that measured on the Intoxilyzer 5000 the reading would not have equaled or exceeded .10. The State objected to Harmon's opinion, arguing that it lacked foundation. The trial court overruled the objection.

On cross-examination, Harmon testified that the Intoxilyzer 5000 calculates the concentration of a compound in the air chamber based on the infrared absorptivity unique to the particular compound in the chamber. The machine is designed to make its calculation based specifically on the absorptivity of ethanol, a factor that is programmed into the instrument by calibration. Harmon admitted that ethanol has a specific infrared absorptivity that is different from the absorptivity factor for albuterol. Harmon acknowledged that he did not know the absorptivity factor for albuterol.

Harmon further testified on cross-examination that the partition ratio has an effect on the calculation made when albuterol is in the chamber of the Intoxilyzer 5000. The ratio is the factor used to convert breath-alcohol concentration to blood-alcohol concentration. Harmon conceded that the partition ratio for ethanol is 2,100 to 1, is unique to ethanol, and is programmed into the computer. He acknowledged that, if a different substance was in the machine with a different partition ratio of, for example, 1 to 1, the machine would be in error by a factor of 2,100. Harmon admitted that he did not know the partition ratio for albuterol. On redirect examination, Harmon explained that the machine reads albuterol as ethanol and would use the partition ratio of ethanol in its calculation. He further noted that the partition ratio for albuterol is not a factor because it relates to the amount of albuterol in the blood and the Intoxilyzer 5000 only reads the albuterol that is introduced into the lungs as if it were ethanol.

During the course of Harmon's testimony, the defendant introduced into evidence defendant's exhibit No. 3, the manufacturer's product information insert for albuterol. The insert prescribes that patients take no more than a two-spray dose every four to six hours. About 90 micrograms of albuterol are dispensed in a single spray. The insert notes that 72% of the inhaled dose is eliminated in the urine within 24 hours. It also notes that animal studies show that albuterol does not pass the blood-brain barrier."

What it doesn't mention is that albuterol is suspended in ethyl alcohol mist for delivery to the lungs as well which is the same alcohol in beer, wine and liquor.