The United States Constitution,6th Amendment to the Bill of Rights states,

"In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district where in the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence."

The Georgia Constitution provides in Article1, Section1, paragraph XIV, titled, "Benefit of counsel; accusation; list of witnesses; compulsory process" as follows:

"Every person charged with an offense against the laws of this state shall have the privilege and benefit of counsel; shall be furnished with a copy of the accusation or indictment and, on demand, with a list of the witnesses on whose testimony such charge is founded; shall have compulsory process to obtain the testimony of that person's own witnesses; and shall be confronted with the witnesses testifying against such person."

The Georgia Constitution often provides more rights than our federal constitution and should never be overlooked.

In the news recently has been the issue of the right to confront witnesses.  In the summer of 2009, in Melendez-Diaz v. Massachusetts, 557 U.S. _____ , 129 S.Ct. 2527 (2009),the United States Supreme Court struck down a Massachusetts statute which allowed a crime lab analysts report identifying a drug to be admitted without person who rendered the analsys showing up for court. The court reversed, on confrontation clause grounds, a Massachusetts Supreme Court decision which had affirmed a cocaine conviction based on the tendering of the report of the crime lab analyst on the basis of particularized guarantees of trustworthiness.  The Supreme Court in an opinion by Justice Anthony Scalia based his decision upon a plain reading of the 6th Amendment's confrontation clause.

The Melendez-Diaz  decision reaffirmed the rule it had announced in Crawford v. Washington, 541 U.S. 36 (2004), that a witness's testimony against a defendant is inadmissible unless the witness appears at trial or, if the witness is unavailable, the defendant had a prior opportunity for cross-examination when the witnesses testimony is testimonial in nature. In Crawford, playing a tape-recorded 911 call of a non-testifying witness was held to violate the Sixth Amendment's confrontation clause.

Georgia practitioners are encouraged to object to both hearsay nature of such reports and the violation of rights guaranteed by the 6th Amendment. As Justice Scalia pointed out in Melendez-Diaz, a government entity whose sole purpose is to gather records at trial is incapacable of availing itself of a business records exception to the hearsay rule. In Walton v. State, 278 Ga. 432 (2004), the Georgia Supreme Court required express a confrontation clause objection to preserve issue for appeal.  "In Georgia, 'hearsay testimony is not only inadmissible but wholly without  probative value, and its introduction without objection does not give it any weight or force whatever in establishing a fact.'" Day v. State, 235 Ga.App. 771 (1998).

Georgia has its own "notice and demand" statute for crime lab reports wherein the prosecutor has the right to notice use of a crime lab affidavit at trial as opposed to a live witness and the defense attorney must file a demand for live witness testimony. See, OCGA 35-3-154.1.  This was in response to Miller v. State, 266 Ga. 850 (1996) where the Georgia Supreme Court made it clear that where lab analysis is needed to prove a crime, a written report is insufficient. To prove the crime, the analyst must testify. In Miller, the Georgia Supreme Court invalidated a newly minted Georgia statute which allowed the state, under certain conditions, to admit an analyst's certificate identifying a drug wthout producing the analyst.

In Carolina .v State, A09A2053, decided January 13, 2010, the Georgia Court of Appeals decided the question of whether a crime lab scientist who actually runs the test must appear in court or only the scientist who interprets the results.  The Court of Appeals ruled that under Georgia case precedent and Melendez-Diaz, ____U.S.___; 129 S.Ct. 2527; 174 LE2d 314(2009), that the defense does not have the constitutional right to cross-examine the lab technician who may have actually performed the tests but just the scientist who interpreted the results. Citing, Dunn v. State, 292 Ga. App. 667 (665 SE2d 377) (2008), ( cited as a "thoughtful and well reasoned opinion of the majority," id. at 673 (Phipps, J., concurring fully and specially); Reddick v. State, 298 Ga. App. 155, 157-158 (2) (679 SE2d 380) (2009); Carter v. State, 297 Ga. App. 608, 610-611 (2) (677 SE2d 792) (2009); see also Rector v. State 285 Ga. 714, 715 (4) (681 SE2d 157) (2009) (trial court did not err by allowing the State's toxicologist to testify about a toxicology report prepared by another doctor where toxicologist reviewed the report and reached the same conclusion as the doctor who prepared the report).

On January 25, 2010, in Briscoe v. Virginia, 559 U.S. ______, 2010 U.S. Lexis 767, in a one-sentence per curiam opinion, the United States Supreme Court vacated a Virginia Supreme Court opinion, Briscoe v. State, 275 Va. 283 (2008), which had affirmed a cocaine conviction using a similar certificate under a similar state law presenting the question of whether the right to confrontation would be satisfied by providing that the accused has a right to call the crime lab analyst who prepared the crime lab report as his own witness. The U.S. Supreme Court remanded the case "for further proceedings not inconsistent with Melendez-Diaz" answering the question with a resounding "No."  Thus, averting a age were criminal defendants could be tried on affidavits and have the onus bringing states witnesses to court to prove their innocence.

The real question becomes where does DUI breath testing fit in in this brave new world of plain reading of constitutional rights?  The secret source code is still out there so only time will tell.

Henry County Police Department in McDonough, GA: Incident & Accident Reports

The Henry County Police Department Records Unit is located inside the Police Headquarters at

The Records Department is open Monday - Friday from 8:00AM until 5:00PM. An Incident Report or Accident Report may be obtained in person from the Records Unit for $5.00. Please allow 3 business days (or 72 hours) from the date the report was filed before a request for a copy of the report is made. The telephone number for the Henry County Police Department is 770 288-8200.

 Police Department Building                                                                                               

Read this opinion from People v. Thill, 696 NE 2d 1175 - Ill: Appellate Court, 2nd Dist. 1998, an appellate decision from Illinois about the effects of albuterol inhalers on DUI breath test devices.

"The defendant testified that he suffers from asthma and that he used a Ventolin inhaler on the night in question at about 6 p.m., 10 p.m., 3:15 a.m., and right before he was stopped by Trooper Clifton. The defendant denied that he was under the influence of alcohol.

Emmet Harmon testified as an expert on behalf of the defendant regarding the effect of albuterol on the breathalyzer used to test the defendant's breath, the Intoxilyzer 5000. Albuterol is an ingredient in the Ventolin inhaler used by the defendant. Harmon stated that the Intoxilyzer 5000 operates on principles of infrared absorption. Under this 1177 theory, organic substances absorb particular wavelengths of infrared light. The amount of absorption is proportional to the concentration of the substance in the path of the infrared light. According to Harmon, ethanol and albuterol fall within the same hydroxyl group tested by the machine, and it cannot differentiate between the hydroxyl compounds of ethanol and albuterol.

Harmon further testified that there are 81 cubic centimeters of air in the air chamber of the Intoxilyzer 5000. He stated that "through some mathematical technique" that amount is calculated to .10 grams of alcohol per 210 liters of breath. He then stated that.0000385 grams of an alcohol compound in 81 cubic centimeters of air would be equal to .10 grams of an alcohol compound in 210 liters of air. In other words, slightly less than four one hundred thousandths of a gram of alcohol would be equal to a .10 reading if it was placed inside the chamber of an Intoxilyzer 5000. Harmon indicated that .000038 grams is equal to 38 micrograms. Harmon then noted that 90 micrograms of albuterol are distributed in a person's lung chamber with one spray from a Ventolin inhaler. The maximum lung retention period for albuterol is approximately two to four hours. Harmon testified that, within a reasonable degree of analytical and chemical certainty, after subtracting any albuterol that measured on the Intoxilyzer 5000 the reading would not have equaled or exceeded .10. The State objected to Harmon's opinion, arguing that it lacked foundation. The trial court overruled the objection.

On cross-examination, Harmon testified that the Intoxilyzer 5000 calculates the concentration of a compound in the air chamber based on the infrared absorptivity unique to the particular compound in the chamber. The machine is designed to make its calculation based specifically on the absorptivity of ethanol, a factor that is programmed into the instrument by calibration. Harmon admitted that ethanol has a specific infrared absorptivity that is different from the absorptivity factor for albuterol. Harmon acknowledged that he did not know the absorptivity factor for albuterol.

Harmon further testified on cross-examination that the partition ratio has an effect on the calculation made when albuterol is in the chamber of the Intoxilyzer 5000. The ratio is the factor used to convert breath-alcohol concentration to blood-alcohol concentration. Harmon conceded that the partition ratio for ethanol is 2,100 to 1, is unique to ethanol, and is programmed into the computer. He acknowledged that, if a different substance was in the machine with a different partition ratio of, for example, 1 to 1, the machine would be in error by a factor of 2,100. Harmon admitted that he did not know the partition ratio for albuterol. On redirect examination, Harmon explained that the machine reads albuterol as ethanol and would use the partition ratio of ethanol in its calculation. He further noted that the partition ratio for albuterol is not a factor because it relates to the amount of albuterol in the blood and the Intoxilyzer 5000 only reads the albuterol that is introduced into the lungs as if it were ethanol.

During the course of Harmon's testimony, the defendant introduced into evidence defendant's exhibit No. 3, the manufacturer's product information insert for albuterol. The insert prescribes that patients take no more than a two-spray dose every four to six hours. About 90 micrograms of albuterol are dispensed in a single spray. The insert notes that 72% of the inhaled dose is eliminated in the urine within 24 hours. It also notes that animal studies show that albuterol does not pass the blood-brain barrier."

What it doesn't mention is that albuterol is suspended in ethyl alcohol mist for delivery to the lungs as well which is the same alcohol in beer, wine and liquor. 

All Atlanta DUI incident reports and Atlanta DUI supplemental reports produced by the Atlanta Police Department can be obtained at Central Records between the hours of 8:30am and 2:30pm for a small fee. Exact change is generally required. Central Records is located:

 For questions about picking up a report, you can call Central Records at (404) 546-4364 or an Atlanta DUI attorney at 770.961.5511.

No. The Georgia Court of Appeals has adopted the view that "`[w]hen the driver of a motor vehicle is arrested and a reliable friend is present, authorized and capable to remove an owner's vehicle which is capable of being safely removed; 405 or where the arrestee expresses a preference as to towing service and designates an appropriate carrier and destination for the vehicle, it is unnecessary for the police to impound it. In either of these instances the rationale for an inventory search does not exist.'" State v. Ludvicek, 147 Ga. App. 784, 786 (250 SE2d 503) (1978). In such a case, there is no justification for the police intrusion. Therefore such "inventory" searches are unreasonable under the Fourth Amendment. Mulling v. State, 156 Ga. App. 404 (274 SE2d 770) (1980); Strobhert v. State, 165 Ga.App. 515, 516, 301 S.E.2d 681 (1983)

See also:

This court has long held" the view 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 - in Lopez v. State, 2007 and 2 similar citations

Courts generally have said that, even where impoundment might in the circumstances be lawful, the owner or possessor of a vehicle, if available and physically and mentally capable, must be given a reasonable opportunity to make an alternative disposition of the vehicle before the police may impound it for the sole or primary purpose of protecting it and the contents … - in People v. Krezen, 1986 and one similar citation

Inventory searches have been upheld because they serve three legitimate interests:(1) protection of the property while in custody;(2) protection of the police from potential dangers; and (3) protection of the police against claims of lost or stolen property. - in State v. Gilchrist, 1985 and one similar citation

—impoundment was unnecessary following the defendant's arrest where the vehicle was legally parked and the passenger was available to drive - in Automobile Inventory Search Exception: The Supreme Court Disregards Fourth ... and one similar citation

Accordingly, under these circumstances, we find that the trial court was authorized to find that the impoundment was not reasonably necessary and to grant the motion to suppress. - in State v. Bell, 2003 and one similar citation

Those cases in which this court has ruled that an impoundment was unreasonable have involved situations in which a reliable passenger or companion was present at the scene of the arrest who could have driven the impounded vehicle away or otherwise taken care of arrangements for removing the vehicle. - in Gooden v. State, 1990 and one similar citation

The vehicle was not stopped by police on a highway, but was parked at the residential property of a friend, and there is no evidence that the car was connected to the arrest of Wright, that his ownership was in doubt, that he was consulted regarding alternate disposition of the vehicle, that it had an invalid tag, or that his friend requested its removal. - in Wright v. State, 2003 and one similar citation

Although absolute necessity is not required, however, a seizure must still be reasonable under the circumstances of a case, and the rationale for inventory searches must inhere in the decision to impound.[Cits.] " - in Martin v. State, 1991

" `(T) he individual's right of privacy is superior to the power of police to impound a vehicle unnecessarily....'[Cits.] " - in State v. Lowe, 1997

—the arresting officer" had not asked about nor given appellant the opportunity to make alternative arrangements for the removal of the vehicle - in State v. Gilchrist, 1985

 

DUI arrests in Gwinnett County are taken to the Gwinnett County Jail.  All DUI arrests by Gwinnett County Police are generally sent to the Gwinnett County Recorder's Court for trial. Gwinnett County Recorders Court can only handle non-jury cases.  Typically, only DUI pleas are handled in Recorder's Court, although some DUI cases can be reduced to non-DUI traffic violations like reckless driving in Recorder's Court.  If a jury trial is requested or motion to exclude evidence or to dismiss the case is filed, then these matters are typically handled in the State Court of Gwinnett County.  For multiple DUI offenders facing harsh jail sentences, the Gwinnett DUI Court is an option.  The Gwinnett DUI Court is a time consuming and strenuous program.  It is not for everyone.  The Gwinnett DUI Court program focuses on rehabilititation rather than jail time.

The Gwinnett County DUI Court was created in 2005 under a pilot program offered by the State and in cooperation Gwinnett County State Court Bench, the Gwinnett County Solicitor's Office, the Defense Bar, Treatment Providers and probation.

The Gwinnett County DUI Court program is a minimum of twelve (12) months and a maximum of twenty-four (24) months and consists of 3 phases: Phase I - Active treatment and early recovery, Phase II - Relapse prevention, and Phase III - Continuance of Care.  The Gwinnett County DUI Court program includes both vocational and educational components in conjunction with substance abuse treatment monitored by the Gwinnett DUI Court judge.  If you would like to participate in the Gwinnett DUI Court Program: First, Speak with your attorney; Second, Read the DUI Court Participant Handbook, the DUI Court Contract and discuss any questions you might have with your attorney; Third, If you are interested in voluntarily entering DUI Court, complete the Participant Application Form, and the Defendant Waiver form; Fourth, Deliver the documents to the DUI Court Office: by mail - Gwinnett County Courthouse, 75 Langley Dr., Attn: Court Administration, Lawrenceville, GA 30045; by Fax - (770) 822-8559. (A fax must be followed by delivery of the original documents.); in person - All documents may be hand delivered to the control desk on the 2nd floor of the Gwinnett Courthouse.

Once you Gwinnett DUI Court application is received: An appointment will be set for you to be assessed by the Gwinnett DUI Court Staff; The Gwinnett Solicitors Office will review your case and your criminal history; The Gwinnett DUI Court Team will review all of this information and make a group decision concerning your acceptance into Gwinnett DUI Court;  If accepted, your DUI attorney should contact the Gwinnett Solicitor's Office for a plea recommendation of punishment and a DUI plea date (DUI Court still means punishment as DUI laws carry minimum mandatory jail time, community service and probation -just less of it); Once you enter your plea your treatment will begin right away.

DUI arrests in the City of Atlanta are sent to the City of Atlanta Municipal Court.  The City of Atlanta Municipal Court is a court of limited jurisdiction and can not handle jury trials.  Requests for jury trials must be sent to either the Fulton County State Court or DeKalb County State Court.  The City of Atlanta Municipal Court has a special DUI court division.  All DUI arrests are processed through the DUI Division which is held in Courtroom 3A of the City of Atlanta Municipal Courthouse located at 150 Garnett Street, Atlanta, GA 30303.  The Court phone number is (404) 658-6940. The Court email is This email address is being protected from spam bots, you need Javascript enabled to view it .  The Judges in the City of Atlanta Municipal Court, generally, are Chief Judge Hon. Deborah S. Greene, (404) 954-8122, Hon. Howard R. Johnson, (404) 588-4707, Hon. Clinton E. Deveaux, (404) 588-5909, Hon. Andrew A. Mickle, (404) 588-4709, Hon. Barbara A. Harris, (404) 588-4702, Hon. Catherine E. Malicki, (404) 588-4710, Hon. Elaine L. Carlisle, (404) 954-6794, Hon. Herman L. Sloan, (404) 588-4708, Hon. Calvin S. Graves, (404) 658-7049, Hon. Gary E. Jackson, (404) 658-6966, and Hon. Crystal S. Gaines, (404) 954-6763. However, generally speaking, the City of Atlanta Municipal Court assigns one Judge to handle all the DUI Atlanta Cases. In the City of Atlanta DUI arrests are generally made by the City of Atlanta DUI Task Force or the Nighthawks Unit of the Georgia State Patrol.  Court is held Monday through Thursday beginning at 8 A.M.  DUI Trials are generally held on the 4th week of the month.

The Municipal Court of Atlanta DUI Court staff are:

Judge - Calvin S. Graves

Prosecutors: Last Name A-L: Shelly Wojohn

                        Last Name M-Z: Warren Atkinson