Clayton County DUI Jury Trial Appeal: If you don't win less safe, don't complain about the breath test
Friday, July 01, 2011
Riverdale, Clayton County DUI Jury Trial: Black v. State, A11A0242, June 14, 2011.
Eric Black was found guilty after a DUI jury trial in Clayton County State Court before Judge John C. Carbo. Black was arrested for DUI in Riverdale after being seen weaving, having an odor of alcohol, bloodshot and watery eyes, slurred speech, stumbling and unbalanced, failed field sobriety tests and registered positive on the alcosenor hand held preliminary breath screening device. Black appealed alleging that he did not received a supplement police report until the day of trial. The Clayton County Trial Court found that he supplemental report was the same as the initial report and there was no violation. The Georgia Court of Appeals found that it must accept the ruling because the initial report and police report were not proffered in the record for appeal. (This is a practice point always proffer documents like this in the record for appeal or attach them as exhibits to your motion for new trial.) Black complained that the trial court's charge commented on the evidence in that it explained the difference between the alcosensor and the state administered breath test on the Intoxilyzer 5000. The Georgia Court of Appeals saw no error and stated is was a correct statement of law. (The problem with the charge actually seems to be that it seems to indicate that there is a numerical result which is not admissible and this would tend to make the jury assume the result was over 0.08 and shift the burdent to defendant to prove otherwise. It should also note that the alcosensor is only approved by the GBI as a preliminary breath screening device used to detect the presence or absence or alcohol in a person's breath.) Finally, Black argued that the results of the Intoxilyzer 5000 were improperly admitted and lacked foundation. The Court of Appeals found that because the trial court merged the breath test count into the less safe count any errors asto the breath test were voided and harmless error.
George C. Creal, Jr. is a trial lawyer with 18 years of courtroom experience. He is one of only 6 Metro DUI lawyers with both an AV Preeminent rating from Martindale.com and a 10.0/10.0 Superb rating on Avvo.com. With over 100 not guilty jury verdicts under his belt, George knows how to convince a jury that the State has not proven his client guilty of DUI beyond a reasonable doubt. George Creal Attorney Profile
Eric Bernstein, with over 10 years of courtroom experience representing clients in matters ranging from DUI traffic crimes to murder as a Criminal Defense Attorney, is a top rated Attorney. Currently specializing in DUI defense, he also handles major and minor drug offenses, probation, and felony cases. His unparalleled dedication to those whom he represents is demonstrated by the positive reviews and comments received from former clients. Eric is known as the "Burner" by police and prosecutors for his take no prisoners, scorched earth style in the Courtroom. As an attorney who refuses to be pushed around, Eric Bernstein will stand up and fight for you in a court of law.
As his name suggests, there is no Justice without Justin. Justin Goodman has over nine years experience in the courtroom as a criminal prosecutor. He has handled a wide range of misdemeanor criminal offenses including DUI, traffic, vehicular homicide, and domestic violence in his six years as an Assistant Solicitor General. He also spent three years as an Assistant District Attorney in Massachusetts where he litigated misdemeanor and felony offenses in one of the nation's most highly respected District Attorney's offices. He has handled thousand of criminal matters and tried over 50 jury trials. Justin's uncommon insight into the prosecution of crimes in Georgia sets him apart from other lawyers. He knows how to get straight to the weaknesses in the State's case. Justin wins cases where others fear to tread.