Nguyen 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 tells 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 show that 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 the trial he waived the issue because there was no plain error. Despite Jones v. State, 326 GA. App. 658 (2014) prohibiting such evidence, it was not error because this trial occurred two months 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:
“Careful 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 that 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