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DUI conviction affirmed of Henry County DUI based on unsteadiness of man with cereral palsy

Harris v. State, A10A0119 (12/21/09).  The Georgia Court of Appeals affirmed the conviction of Rodney Harris a man suspected of driving while a less driver after consuming alcohol in a Henry County Bench Trial for DUI despite it being undisputed that Mr. Harris suffered from the cerebral palsy muscular disorder. (According to Wikipedia, The classical symptoms of cerebral palsy are spasticities, spasms, other involuntary movements (e.g. facial gestures), unsteady gait, problems with balance, and/or soft tissue findings consisting largely of decreased muscle mass.

Scissor walking (where the knees come in and cross) and toe walking (which can contribute to a gait reminiscent of a marionette) are common among people with CP who are able to walk but take on the whole, CP symptomatology is very diverse. The effects of cerebral palsy fall on a continuum of motor dysfunction which may range from slight clumsiness at the mild end of the spectrum to impairments so severe that they render coordinated movement virtually impossible at the other end of the spectrum. Ataxic cerebral palsy may also cause nystagmus. )

Harris was observed driving for a mile or a mile and a half with speeds fluctuating between 30 and 60 miles per hour.  His vehicle weaved within the lane several times.  He had difficulty finding his driver’s license.  He admitted to consuming a few beers.  The man had to steady himself when exiting his vehicle.  Again it is undisputed that he had cerebral palsy.  He had a strong odor of alcohol and red and glassy eyes.

The arresting officer performed the HGN test on Defendant.  According to the Georgia Officer’s training manual, the Hgn test estimates the blood alcohol content of an individual based on the jerking of the eyes and not impairment.  Mr. Harris exhibited 4/6 clues on the HGN which indicates a 77% chance that Defendant is 0.08 or greater.  This does not prove impairment because Georgia law holds that alcohol affects different people differently. The Officer testified that 4 of 6 clues indicated alcohol impairment which is not supported by his training again 4 out of 6 clues only indicates an estimated blood alcohol level. Further, the Officer had difficulty even getting Mr. Harris to follow the stimulus which begs the question of whether the test was even performed according to the Officer’s training.  However, there are scores of causes of nystagmus other than alcohol including brain disorders like cerebral palsy.  The Officer admitted that he had never performed HGN on a person with cerebral palsy and did not indicate that his training had addressed the issue. In this case, the attorney for Defendant objected to the admissibility of the HGN because it was not performed according to the officer’s training.  However, the Court of Appeals held that Defendant pointed to no errors in the administration of the HGN test and it was Defendant’s burden to prove how the Officer improperly administered the HGN test.  The Court of Appeals cited Hawkins v. State, 223 Ga. App. 34 (1996) for this proposition of law.  Hawkins does state this but it cites Hunter v. State, 202 Ga. App. 195, 413 S.E.2d (1991) which does not say that Defendant has the burden of proof as to its objection but only that Defendant has the burden of objecting and properly framing it.  In 1976 in Moore v. State, 237 Ga. 269, 227 S.E.2d 241(1976), the Georgia Supreme Court conclusively held that henceforth charges which place any burden of persuasion upon the defendant in criminal cases shall not be given and such charges will be deemed erroneous and subject to reversal, absent harmless error, and invited error.

Placing the burden on Defendant, in this case, is what allowed a man with cerebral palsy to be convicted of a DUI  when other than the odor of alcohol and red and glassy eyes are the only factors that can not be attributed to cerebral palsy.  While it is not clear whether this man was DUI or not, it is unsettling. This is exactly why the Supreme Court in Moore stated that placing any burden of persuasion upon a defendant in a criminal case violates substantive due process.  The Court of Appeals explained in great detail that it was constrained by any evidence burden to affirm the appeal but manifest injustice would make a reversal or at least a remand for further evidence to be received on cerebral palsy a possibility.  After Harris v. State, it is apparent that those with disabilities will be required to hire an expert to testify on the effects of cerebral palsy that could be confused with alcohol impairment; thus, placing the burden on Defendant to prove his innocence.  This is a disturbing trending DUI law that courts are increasingly requiring Defendants to hire experts who charge thousands of dollars to come to testify about the inaccuracy of alcohol breath tests and standardized field sobriety tests.  Some doctors charge as much as $1000.00 per hour and even retired police officers with special training charge up to $1500.00 a day.  This makes getting a fair trial for someone who can barely afford a lawyer or has to use a public defender almost impossible.  Hopefully, the Supreme Court will address this issue. In the context of a police stop, the burden of proof of establishing that appeal was not subjected to an illegal seizure of his person rests upon the State. State v. Goodman, 220 Ga.App. 169, 170(1), 469 S.E.2d 327; see State v. Johnston, 160 Ga.App. 71, 74, 286 S.E.2d 47, aff’d on other grounds, 249 Ga. 413, 291 S.E.2d 543. One has to wonder why this case is any different.