Blog - DUI Cases of Note
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Wednesday, 19 November 2008 |
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The Georgia Court of Appeals has turn DUI probable cause analysis upside down with the new case of Handley v. State, A08A1577, decided October 24, 2008. Probable Cause is what is required to arrest someone for a crime. It is a very low standard. Frequently referred to as the speed bump on the road to justice. It is the opposite of a reasonable doubt. In the past the Court of Appeals has found that anything from odor of alcohol to an actual act of less safe driving is required to find probable cause basically up holding the trial court's discretion on an any evidence standard or right for any reason. In a situation, when facts are undisputed, the Court of Appeals can judge the evidence against the legal standard as a trial court would which is called "de novo" review. That is what happened in the Handley case. It is remarkable because it has previously been thought that a trial court had pretty much unrestrained discretion to find probable cause to arrest for DUI, less safe or not. Now that has changed.
In Handley, the Athens-Clarke County Sheriff's Deputy pulled over the driver for no tag, smelled alcohol, got the driver to admit to drinking, and administered a positive or negative portable breath test which registered positive. That is it. He arrested the driver for DUI. She tested over the legal limit at the jail on the Intoxilyzer 5000. The Georgia Court of Appeals held that is not enough. Odor, admission of drinking and a positive alcosensor is not enough to establish probable cause for a DUI arrest as a matter of law. This becomes the new base line in DUI arrests. So no moving violation, odor, positive portable breath test and your Atlanta or Georgia DUI should be dismissed in court if there are no other indicators of DUI driving.
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Tuesday, 04 November 2008 |
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The Sixth Amendment to the U.S. Constitution provides that a criminal defendant “shall enjoy the right….to be confronted with the witnesses against him…” Likewise, The Georgia Constitution provides that a criminal defendant “shall be confronted with the witnesses testifying against such a person.” Art. I, Sec. I, Paragraph XIV. The State will often allege that the statements of absent drivres are part of the res gestate as an except to the hearsay rule. However, in Crawford v. Washington, 541 U.S. 36, 53, 124 S.Ct.1354, 1365 (2004), the Supreme Court of the United States held that an out-of-court statement that is “testimonial” in nature is inadmissible in criminal prosecutions, under the Confrontation Clause, unless the witness is unavailable and the defendant had a prior opportunity to cross-examine the witness, regardless of whether such statement is deemed reliable by the court. Though the Court declined to provide a complete definition of testimonial evidence, the court provided a partial definition explaining that testimony is: “a solemn declaration or affirmation made for the purpose of establishing or proving some fact.” Crawford, supra, at 51, 124 S.Ct. 1364.
The Georgia Court of Appeals has held that testimonial statements generally “include statements made by witnesses to government officers investigating a crime. [Cits.]” Lindsey v. State, 282 Ga. 447, 452(4), 651 S.E.2d 66 (2007). The Georgia Supreme Court “refused to define ‘testimonial,’ but expressly stated that the term did apply, inter alia, to ‘police interrogations.’ [Cit.]” Watson v. State,278 Ga. 763, 768(2)(b), 604 S.E.2d 804 (2004) Since Crawford, however, the United States Supreme Court has given somewhat more precise guidance as to which police interrogations produce testimony:
Statements are nontestimonial when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency. They are testimonial when the circumstances objectively indicate that there is no such ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution.
Davis v. Washington, 547 U.S. 813, 822(II), 126 S.Ct. 2266, 165 L.Ed.2d 224 (2006)(that the Confrontation Clause applies only to testimonial hearsay). See also Pitts v. State, supra (predating Davis, but containing a remarkably similar analysis).
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Friday, 05 October 2007 |
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After a DUI arrest, impoundment and inventory search of an automobile must be reasonably necessary. The U.S. Supreme Court has held, "Impoundment of a vehicle is valid only if there is some necessity for the police to take charge of the property." South Dakota v. Opperman, 428 U.s. 364, 96 SC 3092, 49 LE2d 1000(1976). See also, Whisnant v. State, 185 Ga. App. 51, 53, 363 S.E.2d 341 (1987); State v. Crank, 212 Ga. App. 246, 441 S.E.2d 531 (1994). The States only has three interests in towing and impounding a vehicle: (1) protecting the owner's property, (2) protecting the police from potential danger, and (3) protecting the police from false claims or stolen or lost property. Crank, supra at 249. "The individual's right of privacy is superior to the power of the police to impound a vehicle unnecessarily..." State v. Ludvicek, 147 Ga. App. 784, 786, 250 S.E.2d 503 (1978). The Georgia Court of Appeals has adopted the view from Florida and Minnesota that when a driver is arrested and a reliable friend is present who may be authorized and capable of removing the vehicle, or where the arrestee expresses some preference for a private towing service, the rationale for impoundment does not exist. Strobhert v. State, 301 S.E.2d 681 (1983). So, the police don't have wait for a friend to arrive to take the car but if someone is on the scene and can drive or a towing service is reasonably available to tow the car within 15-20 minutes upon request, then the police would be hard pressed to refuse and could subject any illegal items discovered in the car subject to exclusion from evidence upon a proper motion. Atlanta DUI police and Georgia State Patrol (GSP) Nighthawks often allow a friend or relative close by to pick up the car but rarely agree to a private towing service. So always ask for a private towing service, especially if you have AAA or a similar service.
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Friday, 28 September 2007 |
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McWilliams v. State
A07A1820 (criminal case)
September 18, 2007
Blackburn, Presiding Judge.
07 FCDR 2978 (10/05/07)
In McWilliams v. State, the Georgia Court of Appeals held that the following charge was acceptable: " I charge you that it is not necessary for the State to show that the accused was drunk. It is sufficient if the State showed beyond a reasonable doubt that the accused was under the influence [of] alcohol to the extent that it was less safe for him to drive a car than it would have been if he were not so affected, whether drunk or not. " The Court also held that defining "less safe" as " under the influence of alcohol to the extent that he was less safe to do so than he would have been if sober." So If less safe is not drunk and not sober, what is it? Apparently, one must be "influenced" by alcohol. The Court defined "Sober" as follows: sober means simply that one is not under the influence of intoxicants, whether because one has ingested no intoxicants or because the amount of intoxicants ingested is so moderate that one is not influenced by them. The Court concluded that this was not confusing to the jury. So that way they call it driving under the influence, so what does "influenced" mean again? Is that different from "impaired"? It must be or they would call it Driving While Impaired? The Court finally cleared it up with the following charge, "a driver may be convicted of driving under the influence if they have consumed enough intoxicants to make it less safe for them to operate a vehicle than it would be if they were not so affected." Driving While Affected?
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Thursday, 20 September 2007 |
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Massa v. State
A07A1019 (criminal case)
September 11, 2007
Johnson, Presiding Judge.
07 FCDR 2871 (09/28/07)
In this DeKalb DUI arrest, the Defendant was parked off the side of the road and refused both field test and breath test. The Georgia Court of Appeals held that a defendant’s refusal to submit to field sobriety tests is admissible as circumstantial evidence of intoxication and together with other evidence would support an inference that he was impaired drive. How are field tests voluntary if they can use them against you? The answer of course is that they are not. What is an innocent person supposed to do? Never take the HGN. If you are capable of performing field evaluation like standing on one leg and/or walking a line, it might be worth trying. Juries typically will not convict a person that can stand on one leg for thirty seconds. Field Evaluations are divided attention tests and measure your ability to follow instructions and perform physical dexterity exercises.
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Tuesday, 18 September 2007 |
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Can you rescind your refusal to submit to a DUI breath or blood test and still give valid consent to a DUI chemical test? Many DUI police officers will tell you no, but the Georgia Court of Appeals says maybe. In order to be effective, a subsequent consent after a refusal to take a state-administered DUI chemical test must be made: (1) within a very short and reasonable time after the prior first refusal of the DUI test; (2) when a DUI test administered upon the subsequent consent would still be accurate; (3) when DUI testing equipment is still readily available; (4) when honoring the request would result in no substantial inconvenience or expense to the DUI police; and (5) when the individual requesting the test has been in the custody of the arresting officer and under observation for the whole time since the DUI arrest. An initial refusal to submit to an DUI intoxilyzer 5000 test may be properly rescinded, if such rescission is made in accordance with the foregoing guidelines. Dep't of Pub. Safety v. Seay, 206 Ga. App. 71 (Ga. Ct. App. 1992). This is important because it maybe a basis for excluding a refusal from consideration by a DUI jury. Many Metro Atlanta DUI juries will hold a refusal to submit to a DUI breath or blood test against a DUI Defendant in Court.
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Wednesday, 01 August 2007 |
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One arrest, multiple DUI charges? Generally speaking when you are
arrested and then plea or are convicted of DUI, your license is
suspended. For first DUI conviction in five years measured
from date of arrest, the suspension is effectively four months if you
took a breath test with a limited work permit available for Georgia
licensees. A refusal is a one year license suspension with no
work permit. For a second DUI conviction in five years, the
license suspension is 3 years but you can get your license back in one
year if you install and drive with a breath test device installed on
your car for six months. At the end of 18 months, you can get
your license back on a probationary basis with full privileges. For a
third DUI conviction in five years, you are declared a habitual
violator and lose your license for five years with the availability of
a probationary habitual violator license available at the end of two
years. End of the story, not by a long shot. In Dozier v. Jackson, 282 Ga. App. 264 (Ga. Ct. App. 2006),
the Georgia Court of Appeals held that a mother arrested for DUI with
children in the car gets a DUI conviction for the initial DUI offense
and one for each child in the car. As a result, one dui
arrest with children in the car can result in a five year license
suspension resulting in a felony conviction if caught driving again.
Parents beware!
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Tuesday, 17 July 2007 |
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Breath Testing: Intoxilyzer 5000
Davis v. State
A07A1356, July 9, 2007Ellington, Judge.07 FCDR 2429 (07/27/07)
The Court of Appeals held that four breath tests registered on two
breath strips both of which produced only one numerical sample and one
insufficient sample were two adequate sequential samples for purposes
of O.C.G.A. 40-6-392.
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Thursday, 05 July 2007 |
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Steinberg v. State
A07A0312 (criminal case)
June 25, 2007
Phipps, Judge.
07 FCDR 3132 (07/13/07
What is "probable cause" to arrest for DUI? The test of probable cause
requires merely a probability —less than a certainty but more than a
mere suspicion or possibility. To arrest a suspect for driving under
the influence, an officer need only have knowledge or reasonably
trustworthy information that the suspect was actually in physical
control of a moving vehicle, while under the influence of alcohol to a
degree which renders him incapable of driving safely.
This is typically demonstrated by less safe driving like weaving or an
accident; by manifestations of driving like odor of alcohol, red and
glassy eyes, slurred speech and unsteadiness on feet or lack of
balance; or by demonstration of "clues" on voluntary standardized field
sobriety tests (yes, they are voluntary) like jerking eyes on the HGN,
missing heel to toe on the walk and turn and putting your foot down on
the one leg stand withing 30 seconds. Few people realize
that these tests measure your ability to follow instructions as much or
more than your ability to balance and
your coordination. It is never in your interest to take
the HGN. Under some circumstances, field sobriety evaluations
like the one leg stand and walk and turn can be taken if you are sober
or just had a few beers. You have to balance whether it
would look worse to take the tests or to refuse the tests, so there is
no easy answer.
The Court also found that even if the Jury finds no credibility in the
Officers underlying traffic stop that does not undermine the Trial
Judge's ruling that the traffic stop was credible.
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Wednesday, 13 June 2007 |
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Implied Consent Rights
State v, Underwood
A07A0576 (criminal case)
June 1, 2007
Adams, Judge.
07 FCDR 1858 (06/22/07)
Underwood was stopped under suspicion of
hit and run and admitted to possessing marijuana in Cherokee County
north of Atlanta. The Defendant was arrested by the Officer
for possession of marijuana. He was not told that he was arrested
for DUI although the Officer testified that he also intended to arrest
for DUI but did not tell the Defendant that he was arrested for
DUI. The Court of Appeals held that consent is not implied until
the Defendant is arrest for DUI and not just if probable cause to
arrest for DUI is present. The Trial Court excluded the breath
test result and the Court of Appeals affirmed the Trial Court.
During a DUI investigation, police must arrest you prior to reading
the breath test rights or implied consent rights. If they do not,
the breath test can be suppressed. As consent is not implied
until after arrest, officers can not arrest you for “suspicion” of DUI
in Georgia and then take you to the station to see how you do on the
sit down “intoxilyzer 5000″ breath test or the state administered
chemical test. The field breath test is not admissible as to a
result, only positive or negative. So comments like "if you
pass the state test, I let you go" or "if you blow under 0.08, I
won’t charge you with DUI" or "if you blow under 0.08 you are good to
go" equal a breath test excluded from evidence. See, Cooper v. State,
277 Ga. 282 (2003)(holding that chemical testing of a Defendant’s blood
in the absence of probable cause violates the Fourth Amendment
prohibition against unreasonable searches and seizures and holding that
implied consent without probable cause is illegal); Buchanon v. State,
264 Ga. App. 148 (2003)(holding that consent is only implied if a
person is arrested for a violation of O.C.G.A. § 40-6-391 and implied
consent prior to arrest or without probable cause is improper) Handschuh v. State,
270 Ga. App. 676, 607 S.E.2d 899(Dec 01, 2004)(holding that the
statute, as it now stands, provides that consent is implied only if a
person is arrested for a violation of OCGA § 40-6-391, while probable
cause of DUI may provide the impetus to give the implied consent
warning, under OCGA § 40-5-55(a) the implied consent test is only
upheld where an arrest has actually been effectuated.) Affirmed by Hough v. State,
279 Ga. 711; 620 S.E.2d 380 (2005)(Holding where accident resulted in
serious injuries and officer had probable cause to believe that
defendant was driving under influence, officer did not need to arrest
defendant before reading of implied consent rights. However, where
accident did not involve serious injuries, suspect needed to be under
arrest before implied consent rights were read).
We have won several DUIs using this defense.
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