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Home » Cases of Note » Clayton County DUI Jury Trial Appeal: If you don’t win less safe, don’t complain about the breath test
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Clayton County DUI Jury Trial Appeal: If you don’t win less safe, don’t complain about the breath test

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 handheld preliminary breath screening device. Black appealed alleging that he did not receive a supplement police report until the day of trial. The Clayton County Trial Court found that the 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 an appeal or attach them as exhibits to your motion for a 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 it was a correct statement of law. (The problem with the charge seems to be that it seems to indicate that there is a numerical result that is not admissible and this would tend to make the jury assume the result was over 0.08 and shift the burden to the 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 of 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 as to the breath test were voided and harmless errors.