| |
Case 1
Case 2
Case 3
View 27 more case examples by clicking
here
Example
Case 1.
State v. D.K.
Dekalb State Court
Decatur, Georgia
Defendant and his brother wrapped up a July 4th
outing and night of fun by dropping off three other friends
and then driving 88 mph through northern Dekalb County. A state
trooper saw the car, gave chase at speeds topping 110 mph, and
obtained a Vascar reading of 88.5 mph. After beginning to ticket
Defendant, the officer testified that he noticed the smell of
an alcoholic beverage, and "asked the Defendant if he would
consent to some voluntary field tests". At pre-trial motions
hearings, I had questioned the officer about the field sobriety
tests and the "time" between the arrest and the testing
on the Intoximeter 3000. The officer testified under oath at
both the motion hearing and at trial that he had waited at the
Doraville police station for 20 minutes before testing Defendant.
He testified that if he had not done that, his breath test result
would not be reliable. (Defendant later testified that he was
walked straight in to the Doraville station and placed at the
machine with no observation period.)
We subpoenaed the tow truck records to show that
the arresting officer's version was impossible, since the trooper
had also sworn that he waited for the tow truck to leave the
scene before transporting Defendant. Indeed, the tow truck records
showed the officer's signature authorizing the tow of the vehicle.
Defendant's brother (who had been a passenger) also testified
that the trooper stayed until the car was towed. The arresting
officer also testified that it took 8 to 10 minutes to get to
Doraville PD from the arrest site on Peachtree Industrial just
outside I-285. A test result of 0.11% was obtained by the arresting
officer, who was a certified Intox 3000 operator. The officer
testified that he had given correct implied consent advisements,
despite the Defendant's testimony that no card was read to him
at the scene at all.
To create reasonable doubt about the reliability
of the 0.11% result, we subpoenaed Georgia State Trooper TFC
Jack Denny of the Calhoun, GA post. Denny was one of three area
(North Georgia) supervisors for the Intoximeter 3000. He trained
officers on breath testing protocol and procedure. He serviced
and maintained breath machines for the GBI. He testified that
due to the lack of 20 minutes of direct observation, that the
test result was unreliable. He also stated that the "observation"
procedure followed by the arresting officer violated training
for breath testing operators. Rick Swope, of Davie, FL, who
is certified on the Intox 3000 and the Intoxilyzer 5000 confirmed
that the waiting period was absolutely essential to obtain reliable
breath test results.
We also benefited from impeachment created by
the officer testifying at the motion hearing 18 days earlier
that he turned the Defendant away from oncoming lights and the
blue strobes to do the HGN test. At trial he changed this, and
under cross-examination, admitted that he had testified falsely
under oath.
To add credibility to the defense version of the
facts, we brought in three fact witnesses who testified (1)
that Defendant had consumed very little alcohol, and none at
all for more than three hours prior to the stop, (2) that Defendant
had suffered from and been medically treated for gastric problems,
and that he took prescribed medication for the stomach malady,
and (3) that the Defendant had driven more than 70 miles around
Atlanta, without incident and without speeding, prior to the
88 in a 55 that got him pulled over.
To bolster the Defendant's personal credibility,
we brought in two respected businessmen who knew Defendant's
reputation for truthfulness in the community. These character
witnesses were pillars of the community. Although brief, their
testimony established Defendant as a truthful person, compared
to the trooper, who testified forcefully and without flinching,
even when he was lying under oath.
The coup de grace came from the subpoenaed Doraville
video surveillance cameras within the jail and outside the building,
in the parking lot. This showed the trooper driving up to the
building, taking the Defendant out immediately and walking straight
to the Intoximeter 3000, where the test was administered less
than 4 minutes after arriving.
Defendant was found "not guilty" of
both the per se and the "less safe" DUI counts. We
had not challenged the speeding citation.
Example Case 2.
Defendant was originally charged with two counts of DUI (less
safe and per se) and driving left of center line. The arresting
officer obtained a breath test of 0.17% and two field tests (Alco-sensor
and HGN). One officer made the stop, but called in a DUI Task
Force officer to complete the arrest. The task force officer testified
to the usual manifestations, and stated that Defendant had not
been asked to do the one-leg stand and walk and turn field sobriety
tests due to "safety" concerns.
By way of pre-trial motions, the test result was
excluded due to defective implied consent advisements. This
eliminated the per se DUI count. The State's proposed use of
a prior similar transaction was withdrawn on the eve of trial
when the officer in the previous case could not be located.
Despite the task force officer testifying that Defendant had
admitted "having several beers and 3 kamikazes", and
allegedly making the following unsolicited, spontaneous statement:
"The kamikazes was what done me in," the jury acquitted
Defendant after deliberating 21 minutes. The underlying charge
of driving left of center was eliminated at the conclusion of
the State's case by motion for directed verdict of acquittal.
The Defendant had been told by three different
attorneys that his best bet was to plead guilty at Recorder's
Court and do his jail time at a halfway house. He was told by
each of them that he had "no chance" to win a second
offense DUI case in Gwinnett County State Court.
Example
Case 3.
Defendant was facing charges for "lane violation" and
DUI (2 counts) in a case based out of Doraville. The breath test
was 0.21%. The officer was a sergeant, with 25 years of service
as a policeman. The client worked in a construction-related job
which required him to maintain his plastic license to keep his
job. In addition, there was a substantial chance that he would
lose his job even with a nolo contendere plea.
This DUI was second lifetime, and a first offense
in 5 years. Although at motion hearings in June, the officer
stated that there was no videotape, the tape appeared on the
morning of trial in October. Due to defective implied consent
advisements, the breath test was excluded, thereby eliminating
the per se count. Motions were heard on the morning of trial
which (a) left the videotape in evidence, with both audio and
video to be shown to the jury, (b) allowed the prior similar
transaction of more than 76 months prior to the current case
to be used at the present trial to show "propensity"
to drive impaired, and (c) excluded the HGN test, due to the
officer's lack of training.
Defendant was offered a nolo contendere
plea with no jail time to serve, but turned it down, opting
for trial. Just prior to jury selection, the State offered to
nol pros the lane violation charge and the remaining DUI charge
in exchange for a guilty plea to reckless driving. This was
accepted by Defendant. The license was saved. The basis for
the reduction was the poor showing of the officer at the two
motion hearings, and some damaging evidence from the video tape
showing the officer requesting a "transport" vehicle
one minute after stopping the Defendant.
|
William C. Head, Senior Partner
|
© 2007 - 2008 Head
Thomas Webb & Willis LLC. All Rights Reserved. |
Privacy Policy |
