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Taylor v State – when failure to cooperate with police is less safe DUI

Taylor v. State, A13A1899, March 6. 2014. Jeffrey Taylor was arrested for DUI less safe and obstruction at a Douglasville, Douglas County Roadblock.  The evidence showed that Mr. Taylor approached a roadblock.  He was nervous, visibly shaking, breathing heavily, had glassy eyes but not red, had an odor of alcohol and his heart was beating rapidly (no indication how a screening officer determined that just by briefly talking to Taylor?). There was no evidence of less safe driving (it was a roadblock), slurred speech, unsteadiness, or fumbling fingers. Taylor refused a portable breath test saying that he was a vegetarian and the herbs he eats could cause a false positive.  When asked to exit the truck, Taylor refused, rolled up his window, and threatened to call 911.  The Officer went around to the passenger side and removed the keys and Taylor. Taylor was wrestled to the ground and resisted being handcuffed. Taylor refused to take the state-administered test of his breath.

The Court of appeals held that the odor of alcohol, refusal to take the state-administered tests, and his obstruction were sufficient evidence to support the jury’s guilty verdict as to DUI being less safe. With no less safe driving, no admission of drinking, no slurred speech, no red eyes, and no unsteadiness, does the finding of sufficient evidence of DUI hinge upon the failure to cooperate with police? It is well settled that mere presence of alcohol is not enough to convict someone of DUI and that a refusal to submit to a state-administered test of your breath standing alone is merely evidence of the presence of alcohol and may only be considered evidence of less safe driving. See, State v. Ellison, 271 Ga. App. 898, 611 S.E.2d 129 (2005)(Holding that the mere presence of alcohol is not enough to convict of DUI less safe)Baird v. State, 260 Ga. App. 661, 580 S.E.2d 650 (2003)(hold that Georgia law does not permit an inference of impairment from a refusal to take a breath test). This leads to the conclusion that the only evidence of less safe DUI is the obstruction.  As alcohol is a central nervous system depressant, it should reduce nervousness, heart rate, and shaking which would all indicate a lack of alcohol impairment.  This case would seem Taylor made for reversal of itself.

-Author: George Creal