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Lavertu v. State – What is not ineffective assistance of counsel in a DUI blood test case

In Lavertu v. State, A13A2158, February 7, 2014.  Jacqueline Lavertu was arrested in Douglas County for DUI less safe and DUI Per Se (having a blood alcohol content over 0.08), open container, and failure to maintain lane. The Jury found her not guilty of failure to maintain lane but found her guilty of DUI and of having an open container of alcohol in her car.   Lavertu appealed first alleging that no reasonable jury could have found her guilty because four police officers were unable to discern any definitive evidence of intoxication from field sobriety tests, four officers spent nearly an hour deciding if they should arrest her for DUI at all; she consented to a blood test and the jury found her not guilty of a failing to maintain lane. The Douglas County Trial Court found that there was evidence to support the jury’s verdict despite the disconnect between the driving and field tests and the blood test of 0.159 of almost twice the legal limit.

Next Lavertu argued that her lawyer was ineffective (incompetent requiring a new trial) for failing to question the State’s witnesses about their handling of blood test evidence and failed to object to the Prosecutor’s arguing to the jury that she (the prosecutor) believed that because the blood drawer was a chaplain at the jail that the prosecutor believed she could be trusted.  The Court of Appeals attributed these failings to counsel’s trial strategy and found them not to require reversal of the conviction. It should be noted that Prosecutors and Defense attorneys can never argue what they think or believe personally about the evidence. “It is improper for counsel to state to the jury counsel’s personal belief as to the veracity of a witness; however, it is not improper for counsel to urge the jury to draw such a conclusion from the evidence.” Metts v. State, 270 Ga. 481, 484 (4) (511 SE2d 508) (1999).  What the attorneys think is not relevant to the jury’s deliberation. As for the blood sample, it spent five days unaccounted for in transit from the Jail to the Crime lab with no indication that it was refrigerated or protected from heat, degradation, or contamination otherwise.

-Author: George Creal