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Pough v State – plowing new ground in Georgia DUI less safe by dicta

Pough v. State, A13A2269, January 15, 2014. Clifford Pough was standing outside of his gold Jeep on the shoulder of I-85 in Gwinnett County when police pulled up to check the vehicle.  No one was inside the Jeep and the vehicle was running but its lights were off.  Pough allegedly told police that he was on his way home from a shooting pool and had to urinate. Pough admitted to having a few drinks, had an odor of alcohol, red and glassy eyes, and slurred speech.  An Officer Cyphers of the Gwinnett County DUI Task Force was called. Pough performed field tests including 6/6 clues on the HGN, 4/8 clues on the walk and turn, and 2/4 clues on the one-leg stand. Pough consented to a breath test and blew a .157 and .160. He was found guilty of both a less safe DUI and a per se DUI by a jury.  The Judge imposed a single sentence but did not indicate which sentence merged so the Court of Appeals merged the per se DUI or breath test DUI into the less safe DUI.

Pough argued that there was no evidence of his driving. He never argued that he was under the legal limit or not less safe. The Court of Appeals found that a jury could have based its verdict of his driving on circumstantial evidence and disregarded his testimony that he was just riding as a passenger.

However, rather than stopping there, the Court of Appeals went further describing how he was less safe despite the fact that this was not even contested at trial or on appeal and in effect, expanding the statutory definition of what it means to be less in Georgia in what is a perfect example of obiter dictum. Dicta (plural of dictum) is the opinions of a judge that do not embody the resolution or determination of the specific case before the court. Expressions in a court’s opinion that go beyond the facts before the court and therefore are individual views of the author of the opinion and not binding in subsequent cases as legal precedent.  See Wikipedia Definition of Dictum.

What is remarkable is that there are two types of DUI. DUI per se where someone blows over the legal limit. It does not matter if you are drunk or sober but rather all that is required is that you are over the legal limit of 0.08 grams within three hours of driving as relevant by a blood test or an authorized state breath test. Strangely, It does not even matter what your blood alcohol level is while you were driving only the 3 hours window after driving ceases.  See, O.C.G.A. 40-6-391(a)(5). Further, not only it is not relevant what your blood alcohol was while driving, the State’s own breath test device service manual for the Intoxilyzer 5000 states quite clearly on page 17 that the majority of experts believe that attempting to extrapolate what alcohol level an individual had at a previous time is scientifically unreliable. There are simply too many unknowns to do anything other than guess at alcohol levels prior to the time of official state testing. Further, the DUI statutory scheme has evidentiary presumptions for under 0.05 (presumed sober), between .05 and .08 (no presumption) but there is no statutory presumption of less safe DUI over .08. See, O.C.G.A. 40-6-392(b) and(c). Therefore, you can only be charged with a DUI per se or for driving over the legal limit if you are tested on the approved State Breath test or by blood test within the three-hour window after driving.

By Contrast, a DUI less safe, O.C.G.A. 40-6-391(a)(1) is the mirror image of a DUI per se.  It does not matter what your breath or blood level is it only matters whether the alcohol has impaired you to the extent that you are less safe to drive. It is well established that alcohol affects different people differently. Some people are less safe at 0.05 and some are safe at 0.15. However, any inferences over 0.08 are reserved for cases in which the Defendant is accused under O.C.G.A. § 40-6-391(a)(5) for driving over the legal limit only. O.C.G.A.§ 40-6-392(c)(1).

In Evans v. State, 253 Ga. App. 71, 558 S.E.2d 51 (2001), the court of appeals found that an expert’s testimony about Evans’ blood alcohol content based upon the “Widmark formula” is irrelevant in a less safe case, and the only issue is whether Evans’ driving ability was impaired by alcohol to the point he was “less safe” to drive. As was held by the Supreme Court of Georgia in Kevinezz v. State, 265 Ga. 78, 454 s.E.2d 441 (1995),  “[u]nder § 40-6-391(a)(2) [DUI-less safe], impaired driving ability is an element of the crime that the state must prove to obtain a conviction.”  In Kevinezz, the Court determined that DUI-less safe and DUI-excessive blood alcohol content are different methods of proving the offense of “driving under the influence,” an indictment on one does not permit conviction on the other, since “such an indictment would not put a defendant on notice that he or she could be convicted under § 40-6-391[(a)(5) DUI-excessive blood alcohol content], which [does] not contain the phrase ‘under the influence’ in and [does] not require the state to prove impaired driving ability.” And of course, impaired driving ability depends solely upon an individual’s response to alcohol, regardless of his or her blood alcohol content. Baird v. State, 260 Ga. App. 661, 580 S.E.2d 650, 653 (2003).

In Pough, the Court went on to discuss how Pough was less safe by circumstantial evidence of admitted drinking, alcohol breath tests of .157 and .160, and the Officer’s opinion that he was less safe to drive after observing Pough physical manifestations of impairment and field sobriety evaluations citing Jaffray v. State, 306 Ga. App. 469, 702 S.E.2d 742 (2010)(my gift to the DUI Defense bar). In Pough, this dicta is a radical departure from the intended Georgia DUI Statutory scheme, scientifically unreliable and not even argued at the trial level as an impairment was essentially conceded.  This is essentially DUI less safe statute creep and judicial legislation so be on guard if you are charged with DUI Less Safe only as you may have to defend an unaccused DUI per se as well.

-Author: George Creal