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Texas Judge angry because Jury did not believe a DUI breath test

Friday, November 22, 2013

The website recently reported that a Texas Judge “lost” his mind after a jury refused to except the results of an alcohol breath test in a Texas Driving Under the Influence Trial. Not only did the Judge fuss at the jury but he accused them of violating their oath and jury nullifcation.  In Georgia, the Jury does possess the de facto power of nullifcation, i.e., a power to acquit the defendant regardless of the strength of the evidence against him. Miller v. State,  260 Ga. 191 (1990). The Georgia Pattern Criminal Jury instructions in fact also reinforce this concept of jury nullification by stating that if the jury finds the defendant guilty of the crime charged beyond a reasonable doubt it only authorizes the jury to convict whereas if the jury finds a reasonable doubt it is required to acquit.  The charge titled, “1.20.10 Presumption of Innocence; Burden of Proof; Reasonable Doubt,” reads as follows:

 “But, if that doubt does not exist in your minds as to the guilt of the accused, then you would be authorized to convict the defendant.  If the State fails to prove the defendant’s guilt beyond a reasonable doubt, it would be your duty to acquit the defendant.”  Suggested Pattern Jury Instructions, Vol.II, Crim. Cases, 4th Ed., 2013 [emphasis added]

Further, evidence of a DUI breath test is never conclusive and the jury is free to accept it, reject it or ignore it.  In Geothe v. State, 294 Ga. App. 232 (2008), the Georgia Court of Appeals held that, “The Jury, may always consider evidence of the possibility of error or circumstances that might have caused the machine to malfunction. While the State’s Breath Test on the Intoxilyzer 5000 may give rise to an inference that the Defendant’s alcohol concentration violated the law at the time alleged, you are not required to find that it did or agree with the numerical result of the Intoxilyzer 5000.”  The Judge’s commenting on the evidence would finallly be reversible error if it was done before the jury reached a verdict.  Even if the Defendant and/or his attorney admitted guilt the Judge can not direct a verdict and a jury must still find the Defendant guilty beyond a reasonable doubt.

Clearly, this Judge was out of line at the point when he began fussing at the jury and this kind of behavior certainly implicates his ability to be fair and impartial in the future. The Georgia Canons of Judicial Conduct certainly would prohibit such an overt demonstration of evidence.

– Author: George Creal







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    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.
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    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.
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