Georgia DUI Cases of Note


Nguyen v State-why even a .078 DUI is not DIY

Monday, March 09, 2015

DUI not DIYNguyen v. State, A14A1806, March 2, 2015. Trung Nguyen was convicted of a DUI after representing himself. He appealed arguing that the Court erred in allowing the introduction of a prior DUI into evidence and allowing the prosecutor to comment about the prior DUI in her opening statement. He also appealed arguing that he did not knowingly and intelligently waive his right to an attorney during his DUI trial. Nguyen was arrested in Flowery Branch after weaving and allegedly performing poorly on field tests. The Officer also her Nguyen tell his wife on the telephone, “I don’t know how I got so drunk, but I’m under arrest for DUI.”  A blood test revealed that he was .078.  The State offered expert testimony that his blood result at the time of driving was between .088 and .103. 

The Court of Appeals found that there was an adequate explanation of the waiver of counsel at trial.  All that is required is that the records shows that the Defendant was made aware of the dangers of self-representation and nevertheless made a knowing and intelligent waiver.  Simpson v. State, 238 Ga. App. 109 (1999).

The Court of Appeals found that because Nguyen did not object to the prior similar DUI being admitted either prior to trial or during trial that he waived the issue because there was not plain error.  Despite Jones v. State, 326 GA. App. 658 (2014) prohibiting such evidence, it was not error because this trial occurred two month prior to the issuance of Jones, supra

Finally, there are several other issues that were not raised by Nguyen that could have been raised by a knowledgeable DUI lawyer. First, Retrograde Extrapolation is inherently unreliable and has a 20% margin of error even if the expert can accurately determine when blood alcohol peaked which is necessary to calculate blood alcohol at the time of driving.  Evans v. State, 253 Ga App 71 (2001)(State must prove only that the Defendant was less safe to drive regardless of blood alcohol content, there was no factual basis upon which to calculate the blood alcohol at the time of driving, and retrograde extrapolation is scientifically unreliable under Harper v. State).   In Smith v. Tuscaloosa, 601 So.2d 1136, 1140 (Ala.Crim.App.1992) the Alabama Court of Criminal Appeals stated that:
“[c]areful analysis of these studies indicates that retrograde extrapolation is an unreliable method of determining a defendant’s condition at the time of operation. The inadequacies of retrograde extrapolation extend beyond mere technical inaccuracies to problems which are inherent in the basic premises and calculations of this technique. These inadequacies render retrograde extrapolation inherently untrustworthy and therefore inappropriate for use as evidence to convict drunk drivers.” Ibid., quoting E. Abbott, “One for the Road”-The Reliability of Retrograde Extrapolation and the Implications for Vermont Statutes, 16 vt.L.Rev. 395, 397 (1991).

-Author:George Creal





    FacebookFacebook LinkedInLinkedIn UnknownGoogle RSSRSS Bookmark and Share


    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 and a 10.0/10.0 Superb rating on  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

    The National Trial Lawyers





    No legal advice should be obtained from the web site alone. George C. Creal, Jr., P.C. is Georgia Professional Corporation authorized to practice law in the State of Georgia only and all information contained in this web site is intended for use for DUI arrests occurring in the State of Georgia. Individuals with DUI from outside the State of Georgia should contact a licensed attorney in the state of occurrence of their DUI. Copyright © 2014 George C. Creal, Jr. P.C.
    Protected by Copyscape Online Plagiarism Checker

     | DUI Alpharetta   |   DUI Athens   |   DUI Atlanta   | DUI Bibb County   

       DUI Conyers    |     DUI Coweta County   |   DUI Decatur   |   DUI DeKalb County 

     DUI Doraville   |   DUI Douglas   |   DUI Douglasville   |   DUI Duluth 

    Atlanta Office Address: 480 John Wesley Dobbs Ave.,  N.E., Unit 190, Atlanta, GA 30312 | Phone: (404) 491-8712

    In the words of Mark Twain, "Continuous Improvement is better than delayed perfection." If you find errors or deadlinks please email us at, we strive to do better.