In State v. Gauthier, A13A2430, (3/21/14), the Georgia Court of Appeals reversed a Gwinnett County trial court's decision to suppress evidence in a DUI case based on lack of articulable reasonable suspicion. In this case, the Defendant was alleged to have been seen by Gwinnett County police entering a parking lot after businesses were closed for the evening. At, or around 2:56 a.m, a Gwinnett County police officer pulled into the parking lot of the closed business, but did not activate his blue lights. The officer approached the Defendant's car, at which time she apparently just lowered her window without being asked. The officer then asked her why she was in a closed parking lot and requested identification. The Defendant stated she was waiting for her boyfriend. A second officer approached “just minutes” later, observing the Defendant to be crying and distraught. She admitted to that officer that she had “one mixed drink.” The officer conducted field sobriety exercises, after which the Defendant was arrested for DUI less safe. more
State v. Holmes, A13A2164, March 21, 2014. Travis Holmes was arrested for DUI and had his case thrown out after a motion to suppress the stop in the Cherokee County State Court in Canton, Georgia. Holmes was essentially stopped for driving on a road late at night after a report of vandalism at some local baseball fields and reckless driving and after driving up to police investigating two car loads of underage drinkers. The Georgia Court of Appeals affirmed the trial court granting of the motion to suppress and declined to hold that an ongoing investigation of the other vehicles for underage drinking and DUI authorized the deputies to execute an investigatory stop or traffic stop of every car that came down the particular public road after a report of vandalism and reckless driving on or adjacent to that road. Georgia case law is clear that, absent some particularized suspicion of wrongdoing, merely driving down a public road late at night — whether in a quiet residential subdivision, in a high crime area, or in a way that fits a known "pattern" of criminal activity — does not justify an investigatory stop. See Hughes v. State, 269 Ga. 258, 260 (497 SE2d 790) (1998) (finding a lack of sufficient basis to justify an investigatory stop "merely because the person is a white man in a black neighborhood late at night, who picks up a black man at a location police consider a high-crime area, and who then drives slowly in a circular fashion through the neighborhood."); Young v. State, 285 Ga. App. 214, 215-216 (2007) ("The act of driving at night, lawfully, on a public road [even] in a high crime area [with a lawnmower in the trunk] does not justify an investigative stop in the absence of additional circumstances," despite being in an area of reported thefts.) (punctuation omitted); Lyttle v. State, 279 Ga. App. 659, 662 (2006) (investigatory stop not authorized because "the deputy did not observe [the defendant] doing anything other than driving at night, lawfully, on a public road in a high crime area"); Attaway v. State, 236 Ga. App. 307, 309 (511 SE2d 635) (1999) (reversing denial of motion to suppress because the "only arguably suspicious behavior . . . was driving around a subdivision several times late at night"). more
Sullivan v. State, A13A2037, March 21, 2014. Michael Sullivan was arrested for DUI less safe in Atlanta, Fulton County Georgia, after being observed by Trooper Osby, of the Georgia State Patrol Nighthawk unit, spinning out at an intersection going the opposite direction. Trooper Osby made a u-turn and pulled him over for doing 50 to 55 in a 35-40 mph zone. (Query: it is not the crime of laying drag to spin wheels unless the car moves from side to side in a zig-zag fashion while the wheels are spinning and how did the trooper estimate speed, i.e., visual, radar, or pacing while driving in the opposite direction, and why did he not know the speed limit? The stop should have been challenged.) Sullivan allegedly had an odor or alcohol, was slow to get out of his car but did not stumble or stagger, had slow and mumbled speech but not slurred, bloodshot and watery eyes. Sullivan then refused all field tests stating that he knew he was going to jail. Sullivan was then arrested for DUI less safe and refused a state breath test. more
State v. Mitchell, A13A1829, March 20, 2014. A jury found Dantrell Mitchell guilty of DUI after the Prosecutor argued in closing that by refusing a DUI breath test the Defendant failed to take the opportunity to "prove his innocence." The Georgia Court of Appeals held that a Prosecutor arguing that a refusal to take a DUI breath test is a failure by the Defendant to take an opportunity to prove his innocence is both improper argument by the Prosecutor and impermissibly shifts the burden to the Defendant. The Court of Appeal cited Pinch v. State, 265 Ga. App. 1, 5(4), 593 SE 2d 1 (2003) where it was held that a Prosecutor argued that if the Defendant had taken the breath that there was a chance to show sobriety was both improper and impermissibly shifted the burden to Defendant.
Jones v. State, A13A1940, Court of Appeals of Georgia, March 28, 2014. In January 2013, a Cherokee County jury found Michael Jones guilty of DUI Per Se (Breath test DUI), DUI less safe (Impaired driving DUI) and speeding. Jones appealed arguing that the Court erred by admitting evidence of his prior DUI conviction under OCGA 24-4-404(b) as the evidence was simply bad character evidence and not relevant or probative as to any proper material issue in the case, and because evidence of the prior DUI was more prejudical than it was probative under OCGA 24-4-403. In the current case, Jones was stopped for speeding. An odor of alcohol was detected. Field sobriety evaluations were performed. The Officer arrested Jones for DUI less safe and read implied consent. Jones blew a .147 and .139. The State moved to introduce evidence of a 2005 DUI conviction for purposes of proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident under the new evidence code which eliminated bent of mind and course of conduct reasons as a basis for similar transactions. After a hearing at the Cherokee Courthouse in Canton, Georgia, the Trial Court Judge, Frank C. Mills III, allowed the 2005 DUI conviction in evidence for the purpose of knowledge and intent that is the intent to drive less safe, specifically knowledge of what alcohol did to him the first time. more