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.

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.  

Colorado Crime Lab produces false alcohol blood tests in at least 82 DUI cases

2009 MADD Georgia Law Enforcement Award Winners

Agency Awards:

Category Awards:

Other Awards:

Individual Officer Awards for number of DUI arrerts:

Red Pin Awards 150+ DUI Arrests

Gold Pin Awards 100-149 DUI Arrests

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.