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Court of Appeals rejects hard fought Cherokee DUI and finds fields relevant to establish blood alcohol

Holowiak v. State II, A10A2021, Georgia Court of Appeals, March 29, 2011. DUI per se; DUI less safe. Cherokee County State Court DUI Jury Trial.

The Defendant Driver, Holowiak, was stopped at a roadblock in Cherokee County by the Sheriff’s Department. The Officer smelled an odor of alcohol, observed red and glassy eyes, flushed face, admitted a couple of drinks, consented to a preliminary breath test, performed the HGN, walk-and-turn, and one-legged-stand which indicated under the influence. Holowiak then blew .125 on the Intoxilyzer 5000 in a mobile command unit at the roadblock.  Holowiak was tried on less safe and per se DUI. The jury reached a not guilty verdict on the less DUI and could not reach a verdict per se. The case was retried on pre-use only and Holowiak was found guilty of DUI per se. Holowiak argued that evidence of his less safe driving, alcohol impairment, and field sobriety tests was irrelevant in a DUI per se case. The Court of Appeals found that Georgia law favors the admission of relevant evidence no matter how slight the probative value. Relevance is the domain of the trial court. The Court reasoned that Field Sobriety tests are not designed to detect the mere presence of alcohol in a Defendant’s system but also information about the quantity of alcohol correlating with a breath test.

There is still a Harper objection that fields other than HGN cannot correlate to a numerical blood alcohol level but it was not addressed in this appeal.  The Court of Appeals reasoned that evidence of the correlation of field tests to a given Intox 5000 reading was relevant to counter Defendant’s attacks on Intox. 5000. Next, Holowiak argued that the Court erred by denying discovery of exculpatory evidence including source code through an out-of-state witness violated his right to confront witnesses. The Court held that his right to confront witnesses was not violated if he could not show the evidence was necessary and material and not speculative. Holowiak argued that the trial court erred by refusing to exclude evidence that he declined an independent test of blood, breath, or urine.  The Court found without explanation that it was relevant and did not violate his right to self-incrimination. Finally, the Court of Appeals overruled Holowiak’s objection that charges did not adequately address possible flaws with Intox. 5000, did not charge that mere presence of alcohol does not support impairment, and on considering pre-existing conditions in evaluating fields.

The Court of Appeals ruled that the charges as a whole addressed these issues.

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