In Davis v. State, A09A2057, November 13, 2009, the Georgia Court of Appeals affirmed the judgment of the State Court of Troupe County in LaGrange Georgia in the DUI conviction of Franklin Attorney Dock H. Davis. Mr. Davis represented himself. Mr. Davis was in an accident a 6:15 p.m. wherein he allegedly hit a utility pole in Franklin, Georgia.  Officers found Mr. Davis when they went to his house.  According to Officers, Mr. Davis had a faint odor of alcohol, slurred speech, stumbled, had glazed eyes and his complexion was patsy.  He took an additional blood test at 8:55 P.M. and registered a 0.053.  The legal limit in Georgia is 0.08.  A forensic toxicologist testified that at 6:15 p.m., Mr. Davis' blood alcohol at 6:15 p.m. would have been between 0.078 and .115 depending on how fast he metabolized alcohol.  The Court of Appeals found that there was sufficient evidence to find him guilty of DUI less safe.  The Court Appeals also found that Mr. Davis enumeration of error that  the Court refused to charge accident was misplaced as accident does not apply to DUI charges as they are strict liability offenses that do not depend on intent. The Court appeals also affirmed the Troupe County Court's ruling that excluded evidence that Heard County Sheriff's Deputies has planted drugs on Mr. Davis' clients in the past and that Mr. Davis was entitled to a new trial because the LaGrange Court had not warned Mr. Davis of the Dangers of self-representation.

This case is a perfect example of why not to represent yourself.  First, Mr. Davis was charged with less safe DUI only, so his alleged blood alcohol content at the time of the accident would be irrelevant.  In Evans v. State, the Georgia Court of Appeals held,

In that regard, the inferences addressed in OCGA § 40-6-392(b) apply only where "the amount of alcohol in the person's blood at the time alleged [i]s shown by chemical analysis of the person's blood, urine, breath, or other bodily substance."[9] When chemical analysis of bodily substances is refused, the statutorily permitted inferences that arise from such chemical testing are irrelevant, and there is nothing for the defense to rebut by using the "Widmark formula."

Thus, absent the chemical analysis referenced in OCGA § 40-6-392(b), an expert's testimony about Evans' blood alcohol content based upon the "Widmark formula" is irrelevant, and the only issue is whether Evans' driving ability was impaired by alcohol to the point he was "less safe" to drive. As was held by the Supreme Court of Georgia in Kevinezz v. State,[10] "[u]nder § 40-6-391(a)(2) [DUI—less safe], impaired driving ability is an element of the crime that the state must prove to obtain a conviction."[11] In Kevinezz, the Court determined that DUI—less safe and DUI—excessive blood alcohol content are different methods of proving the offense of "driving under the influence," and indictment on one does not permit conviction on the other, since "such an indictment would not put a defendant on notice that he or she could be convicted under § 40-6-391[(a)(5) DUI—excessive blood alcohol content], which [does] not contain the phrase `under the influence' and [does] not require the state to prove impaired driving ability."[12] And of course impaired driving ability depends solely upon an individual's response to alcohol, regardless of his or her blood alcohol content: "A blood-alcohol level greater than .06 might not render one individual a less safe driver, whereas a blood-alcohol level below .06 might render another individual a less safe driver....

(c) Finally, in his proffered testimony, Dr. Citron stated that the "Widmark formula" has a 20 percent margin of error, thereby failing to establish the level of "verifiable certainty" producing "reliable results" which is required to make such a procedure admissible.[16] This is not a situation wherein a procedure that is otherwise accurate and reliable is subject to human error in its administration or interpretation, which would be the proper subject of cross-examination.[17] Nor is the "Widmark formula's" margin of error sufficiently minimal so as to be considered "some margin of error [which] may give an erroneous result under certain circumstances."[18] Instead, the "Widmark formula," itself, produces inaccurate results to the extent of a 20 percentage point differential, plus or minus. We believe it is appropriate for the trial court to permit expert testimony utilizing the "Widmark formula" only when it is "demonstrated with verifiable certainty that [the Widmark formula is] an accurate and reliable means of ascertaining ... a person[`s blood alcohol content]."[19]

Therefore, not only is the retrograde extrapolation of Mr. Davis' blood alcohol content irrelevant, it is not reached a veriable certainty for purposes of scientific evidence to be admissible in evidence.  Further, without retrograde extrapolation, the only test result in evidence would have been an 0.053.  In addition, Mr. Davis must have taken a state administered test which was under the legal limit as well to even be entitled to an independant blood tests. Further, the manifestations of impairment used to affirm his appeal could have been the result of the accident wherein he cut a utility pole in half with his truck.  An experienced DUI attorney would have immediately spotted these and many other potential issues which would have more than likely resulted in a not guilty verdict or a reduction of charges.

---