Georgia DUI Cases of Note

Riley v California - Smart Phones enjoy 4th Amendment protections against unreasonable searches

Tuesday, July 22, 2014

cell phone searchesRiley v. California, Nos. 13-132, Supreme Court of the United States, June 25, 2014. Chief Justice Roberts addressed the issue of whether police may, without a warrant, search the contents of an accused cell phone or smart phone subsequent to arrest. David Riley was stopped by police while driving with an expired tag.  A computer check also indicated that Riley was driving with a suspended license.  A search of his vehicle incident to arrest revealed to firearms under the hood. He was then arrested with possession of a concealed weapons. Further, some items were found on Riley that associated him with the street gang know as the "Bloods."  Police then searched the contents of his cell phone without a warrant. Subsequent search of the phone revealed contacts with other gang members and photos and videos that associated Riley with an earlier drive by shooting.   more

Frost v. State - New Evidence code means prior similar DUIs are rarely admissible

Monday, July 21, 2014

Georgia DUI Similiar TransactionFrost v. State, A14A0730, Court of Appeals of Georgia, July 15, 2014.  Gary Frost was arrested for DUI after striking a gate at his condo complex. After a jury reached a verdict on the two counts of striking a fixed object and open container of alcohol, it was hopelessly deadlocked on the DUI charge.  Frost requested the Court receive the verdicts on the two underlying counts that the jury reached a verdict.  The Court refused. Defendant filed a plea in bar in former jeopardy on the retrial which the Court denied.  The Court of Appeals reversed finding that a jury stated in open court that they had reached verdict which was also evidenced by the jury's notes to the trial judge. Defendant could not be retried on the counts upon which a verdict had been reached.  more

Sanders v State - Intoxilyzer source code is not material to a DUI

Thursday, June 26, 2014

Georgia Intox DUI source codeSanders v. State, A14A0142, June 18, 2014. Following a bench trial of a DUI under OCGA 40-6-391(a)(5), Meredith Sanders was found guilty of DUI. She appealed claiming that her Constitutional rights to due process and compulsory process were violated by the failure of Judge Diane Bessen of the Fulton County State Court to grant a continuance to obtain an out of state subpoena for a witness from CMI, Inc in Kentucky to produce the computer source code underlying the random number generator otherwise known as the Intoxilyzer 5000 which is being phased out by the GBI due to reliability concerns. Sanders had previously requested and Judge Bessen had granted a certificate of materiality for an out of state subpoena concerning an out of state witness request under the Uniform Act to obtain the Intox source code.  The Kentucky Trial Court had denied the request finding that it was neither material nor necessary, nothing more than a fishing expedition and essentially ignoring the Georgia Trial Court's certicate of materiallity. It should be noted that the manufacturer of the Intoxilyzer 5000 is the largest single employer in the County in Kentucky where the certificate was filed. The Kentucky Trial Court's orders is still under appeal in Kentucky. The Georgia Court of Appeals summarily rejected the Constitutional claims citing Smith v. State, 325 Ga. App. 405, 410, 750 SE2d 758 (2013) and Phillips v. State, 324 Ga. App. 728, 751 SE2d 526 (2013).  It should be noted that Smith v. State simply relied on the reasoning in Phillips v. State. Phillips v. State held that because there is no evidence that the source code is Brady material or exculpatory under Brady v. Maryland it is not a Constitutional violation to deny a continuance (what about the right by the Defendant of an in camera inspection of all alleged Brady material by the trial court?); and because source code is not testimonial just like an Intoxilyzer 5000 inspection certicate under OCGA 40-6-392 as in Rackoff v.State, it is not a violation of the confrontation clause or right to confront witnesses call against a defendant which was at least implicitly over-ruled by Bullcoming v. New Mexico.  See also, Disharoon v. State, 291 Ga. 45,727 S.E.2d 465 (2012) (Query: what if the certificate of materiality simply asks for a witness from CMI, Inc., the manufacturer of the Intoxilyzer 5000, to testify to the internal workings of the machine which no witness available in Georgia is capable of doing?).  I wonder what Justice Scalia would have to say about this? Legal Twister? more

Collins v State - Stipulated Bench Trials are for suckers

Monday, June 23, 2014

dont be a sucker in a Georgia DUICollins v. State, A14A0304, Court of Appeals of Georgia, June 17, 2014. Camela Noelle Collins was found guilty of DUI Less Safe, DUI Per Se (having a blood or breath level over 0.08 grams within three hours of driving), and failure to maintain lane after a stipulated bench trial.  The point of the stipulated bench trial was to allow the Defendant to appeal the Rockdale County State Court's denial of  Defendant's motions surrounding the Intoxilyzer 5000 source code including the certificate of materiality to obtain witnesses from CMI, Inc in Owensboro, Kentucky and Constitutional rights that were violated by the fallure to produce the Intoxilyzer 5000 computer source code. The appealed issues involved the DUI per se count which was based on the breath tests.  The Court initially found the Defendant guilty and sentenced on the DUI per se and merged the DUI less safe, so Defendant was only convicted on the DUI per se allowing an appeal of the breath test. The Trial Court came back later 20 days later and amended the sentence convicting on the DUI less safe and merging the DUI per se therefore leaving nothing to appeal. Because the DUI per se was merged appeal was dismissed as moot. You've been punked! Next time just have a jury trial and if the jury finds your client not guilty on the DUI less safe and guilty on the DUI per se then you have a good appeal or get the Trial Court's word that they will only sentence on the DUI per se if you can trust'em.  more

Wing v. State - Stop after accident reported on 911 need no corroboration

Friday, June 20, 2014

911 called based traffic stopsWing v. State, A14A0136, Court of Appeals of Georgia, May 27, 2014. On April 7, 2013, police received a dispatch over the radio from a 911 operator that a car had struck another car parked in a church parking lot. When the Officer arrived at the parking lot he observed a blue car driving away and 3 to 5 by standers pointing at the blue vehicle. The Officer immediately pursued the blue car and initiated a traffic stop. The Defendant Connie Wing was convicted of DUI as a result of the stop. The Defendant had argued that the stop was illegal as there was not investigation that there was even an accident in the first place or violation of law. The Henry County Trial Court in McDonough found that the stop was legal based on Brown v. State, 261 Ga. App. 228,582 S.E.2d 183 (2003), where police were dispatched to a Waffle House after the report of a fight and upon arrival observed a truck leaving with several by standers pointing the truck out to police.  more

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